(2) Texas; (3) California (Eastern Kern Air Pollution Control District,
Imperial County Air Pollution Control District and San Joaquin Valley
Air Pollution Control District); and (4) Washington (Energy Facility
Site Evaluation Council and Southwest Clean Air Agency). The EPA is
including these additional affirmative defense provisions in this SNPR
in order to provide comprehensive guidance to all states concerning
such provisions in SIPs and to avoid confusion that may arise due to
recent Agency administrative actions, litigation and resulting court
decisions relevant to such provisions under the CAA. In particular, the
EPA is concerned that its explicit approval of affirmative defense
provisions in the SIPs of other states as being consistent with the
requirements of the CAA as reflected in the 1999 SSM Guidance warrants
affirmative action by the Agency to ask those states to revise their
SIPs. Accordingly, the EPA is proposing to make a finding of
substantial inadequacy for these additional affirmative defense
provisions because they are not consistent with fundamental legal
requirements of the CAA and the EPA is proposing to issue a SIP call
with respect to each affected state for these specific provisions as
well.

B. Affected States in EPA Region III

1. District of Columbia
a. Petitioner's Analysis
    The Petitioner objected to five provisions in the District of
Columbia (DC) SIP as being inconsistent with the CAA and the EPA's SSM
Policy.\38\ Among the other alleged SIP deficiencies, the Petitioner
objected to the provision in the DC SIP that provides an affirmative
defense for violations of visible emission limitations during
``unavoidable malfunction'' (D.C. Mun. Regs. tit. 20 Sec.  606.4). The
Petitioner objected to this provision because the elements of the
defense are not laid out clearly in the SIP, because the term
``affirmative defense'' is not defined in the SIP, and finally, the
Petitioner argues, because affirmative defense provisions for any
excess emissions are wholly inconsistent with the CAA and should be
removed from the SIP. The Petitioner's overarching claim was that CAA
section 113 is a bar to affirmative defense provisions because EPA does
not have authority to alter the jurisdiction of the courts to assess
penalties or the factors that Congress directed the courts to consider.
---------------------------------------------------------------------------

    \38\ Petition at 29-30.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to D.C. Mun. Regs. tit. 20 Sec.  606.4 because it
is not a permissible affirmative defense provision consistent with the
requirements of the CAA and the EPA's recommendations in the EPA's SSM
Policy. The EPA previously stated its belief that, by purporting to
create a bar to enforcement that applies not only to monetary penalties
but also to injunctive relief, this provision is inconsistent with the
requirements of CAA sections 113 and 304. By not including sufficient
criteria to assure that sources seeking to raise the affirmative
defense have in fact been properly designed, maintained and operated,
and to assure that sources have taken all appropriate steps to minimize
excess emissions, the provision also fails to be sufficiently narrowly
drawn to justify shielding from monetary penalties for violations.
Thus, the EPA previously reasoned that this provision is not
appropriate as an affirmative defense provision because it is
inconsistent with fundamental requirements of the CAA.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for D.C. Mun. Regs.
tit. 20 Sec.  606.4. The EPA is proposing to revise its interpretation
of the CAA with respect to affirmative defense provisions in SIPs.
Previously the EPA assessed whether the provision met certain
requirements, such as being limited to monetary penalties rather than
injunctive relief and containing sufficiently robust criteria to assure
that the defense applied only in appropriately narrow circumstances.
Now, the Agency must evaluate such provisions to determine whether they
are constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to assess civil penalties or other forms
of relief for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304. The EPA interprets the provision of D.C. Mun.
Regs. tit. 20 Sec.  606.4 to create an impermissible affirmative
defense for violations of visible emission limitations during
``unavoidable malfunction'' events. The provision operates to limit the
jurisdiction of the federal court in an enforcement action and to
preclude both liability and any form of judicial relief contemplated in
CAA sections 113 and 304. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
    For this reason, the EPA is proposing to find D.C. Mun. Regs. tit.
20 Sec.  606.4 substantially inadequate to meet CAA requirements and
the EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense
provision and is not revising its February 2013 proposal with respect
to the proposed action on the other four provisions in the DC SIP that
are at issue in the Petition.
2. Virginia
a. Petitioner's Analysis
    The Petitioner objected to a generally applicable provision in the
Virginia SIP that allows for discretionary exemptions during periods of
malfunction (9 Va.

Admin. Code Sec.  5-20-180(G)).\39\ The Petitioner objected to this
provision on multiple grounds, including: (i) That it provides an
exemption from the otherwise applicable SIP emission limitations; (ii)
that it provides a discretionary exemption for excess emissions during
malfunction because the provision gives the state the authority to
determine whether a violation ``shall be judged to have taken place'';
and (iii) that if intended as an affirmative defense provision it fails
to meet EPA's interpretation of the CAA with respect to such provisions
for several reasons.
---------------------------------------------------------------------------

    \39\ Petition at 70-71.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 9 Va. Admin. Code Sec.  5-20-180(G). The EPA
explained that the provision at issue is deficient for several reasons,
including the fact that it is not sufficient as an affirmative defense
provision to meet CAA requirements. With respect to the deficiency of
the provision as an affirmative defense, the EPA noted that even if it
were to consider 9 Va. Admin. Code Sec.  5-20-180(G) as providing for
an affirmative defense rather than an automatic or discretionary
exemption, the provision is not a permissible affirmative defense
provision consistent with the requirements of the CAA as interpreted in
the EPA's recommendations in the EPA's SSM Policy. The EPA previously
stated its belief that, by purporting to create a bar to enforcement
that applies not only to monetary penalties but also to injunctive
relief, this provision is inconsistent with the requirements of CAA
sections 113 and 304. The EPA also argued that by not including
sufficient criteria to assure that sources seeking to raise the
affirmative defense have in fact been properly designed, maintained and
operated, and to assure that sources have taken all appropriate steps
to minimize excess emissions, the provision fails to be sufficiently
narrowly drawn to justify shielding from monetary penalties for
violations. Thus, the EPA previously proposed to find that this
provision is not appropriate as an affirmative defense provision
because it is inconsistent with fundamental requirements of the CAA.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for 9 Va. Admin.
Code Sec.  5-20-180(G). The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304. The EPA
interprets the provision of 9 Va. Admin. Code Sec.  5-20-180(G) to
create an impermissible affirmative defense for violations of SIP
emission limits. The provision would operate to limit the jurisdiction
of the federal court in an enforcement action and to preclude both
liability and any form of judicial relief contemplated in CAA sections
113 and 304. Thus, the EPA believes that this provision interferes with
the intended enforcement structure of the CAA, through which parties
may seek to bring enforcement actions for violations of SIP emission
limits and courts may exercise their jurisdiction to determine what, if
any, relief is appropriate.
    For these reasons, the EPA is proposing to find 9 Va. Admin. Code
Sec.  5-20-180(G) substantially inadequate to meet CAA requirements and
the EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense
provision and is not revising its February 2013 proposal notice with
respect to the other separate bases for the finding of substantial
inadequacy of this provision.
3. West Virginia
a. The EPA's Evaluation
    In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified one affirmative
defense provision in the SIP for the state of West Virginia in W.Va.
Code Section 45-2-9.4. This provision provides an affirmative defense
available to sources for excess emissions that occur during
malfunctions. The EPA notes that it has already proposed to make a
finding of substantial inadequacy and to issue a SIP call for another
related provision in W.Va. Code Section 45-2-9.1 for separate reasons
not relevant here and the EPA is not reopening its February 2013
proposal notice with respect to the latter SIP provision.
    In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
    As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. The affirmative defense in
W.Va. Code Section 45-2-9.4 provides that if a source establishes
certain factual criteria ``to the satisfaction of'' a state official,
then the occurrence of a malfunction is an ``affirmative defense.'' The
EPA notes that the affirmative defense for malfunctions in W.Va. Code
Section 45-2-9.4 was not consistent with the EPA's prior interpretation
of the CAA and with its recommendations for such provisions in the 1999
SSM Guidance. Regardless of that fact, the EPA believes that this
provision impermissibly purports to alter or eliminate the jurisdiction
of federal courts to assess penalties or to impose other forms of
relief for violations of SIP emission limits. Under this provision, if
the source is able to establish that it met each of the specified
criteria to the satisfaction of the state official, then the provision
purports to bar any relief for those violations. Accordingly, the EPA
believes that this affirmative defense provision is inconsistent with
the fundamental enforcement structure of the CAA and the EPA thus
believes that

the provision is not consistent with CAA requirements for SIP
provisions.
b. The EPA's Proposal
    In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provision applicable to excess emissions that occur during malfunctions
in W.Va. Code Section 45-2-9.4. The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304.
    The EPA interprets W.Va. Code Section 45-2-9.4 to provide an
affirmative defense that operates to limit the jurisdiction of the
federal court in an enforcement action and to limit the authority of
the court to impose monetary penalties or to impose other forms of
relief as contemplated in CAA sections 113 and 304. Thus, the EPA
believes that this provision interferes with the intended enforcement
structure of the CAA, through which parties may seek to bring
enforcement actions for violations of SIP emission limits and courts
may exercise their jurisdiction to determine what, if any, relief is
appropriate.
    For these reasons, the EPA is proposing to find W.Va. Code Section
45-2-9.4 substantially inadequate to meet CAA requirements and thus the
EPA is proposing to issue a SIP call with respect to this provision.
The EPA notes that in this SNPR it is only addressing this provision
with respect to its deficiency as an affirmative defense provision and
is not revising its February 2013 proposal with respect to the proposed
action on the other provisions in the West Virginia SIP that are at
issue in the Petition.

C. Affected States in EPA Region IV

1. Georgia
a. Petitioner's Analysis
    The Petitioner objected to a provision in the Georgia SIP that
provides for exemptions for excess emissions during startup, shutdown
or malfunctions under certain circumstances (Ga. Comp. R. & Regs. 391-
3-1-.02(2)(a)(7)).\40\ The Petitioner objected to this provision on
multiple grounds, including: (i) That it provides an exemption from the
otherwise applicable SIP emission limitations by providing that the
excess emissions ``shall be allowed'' subject to certain conditions;
(ii) that although the provision provides some ``substantive
criteria,'' the provision does not meet the criteria the EPA recommends
for an affirmative defense provision consistent with the requirements
of the CAA in the EPA's 1999 SSM Guidance; and (iii) that the provision
is not a permissible ``enforcement discretion'' provision applicable
only to state personnel, because it ``is susceptible to interpretation
as an enforcement exemption, precluding EPA and citizen enforcement as
well as state enforcement.''
---------------------------------------------------------------------------

    \40\ Petition at 32.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7). The
EPA explained that the provision at issue is deficient for several
reasons, including the fact that it is not sufficient as an affirmative
defense provision to meet CAA requirements. With respect to the
deficiency of the provision as an affirmative defense, the EPA noted
that Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is not a permissible
affirmative defense provision consistent with the requirements of the
CAA as interpreted in the EPA's recommendations in the EPA's SSM
Policy. By purporting to create a bar to enforcement that applies not
only to monetary penalties but also to injunctive relief, the EPA
reasoned that this provision is inconsistent with the requirements of
CAA sections 113 and 304. The EPA also argued that by not including
sufficient criteria to assure that sources seeking to raise the
affirmative defense have in fact been properly designed, maintained and
operated, and to assure that sources have taken all appropriate steps
to minimize excess emissions, the provision also fails to be
sufficiently narrowly drawn to justify shielding from monetary
penalties for violations. Moreover, the EPA previously reasoned that
Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) was deficient because it
applies not only to malfunctions but also to startup and shutdown
events, contrary to the EPA's interpretation of the CAA set forth in
the February 2013 proposal notice. Thus, the EPA previously proposed to
find that Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7) is not appropriate
as an affirmative defense provision because it is inconsistent with
fundamental requirements of the CAA.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for Ga. Comp. R. &
Regs. 391-3-1-.02(2)(a)(7). The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304. The EPA
interprets the provision of Ga. Comp. R. & Regs. 391-3-1-.02(2)(a)(7)
to create an impermissible affirmative defense for violations of SIP
emission limits. The provision operates to limit the jurisdiction of
the federal court in an enforcement action and to preclude both
liability and any form of judicial relief contemplated in CAA sections
113 and 304. Thus, the EPA believes that this provision interferes with
the intended enforcement structure of the CAA, through which parties
may seek to bring enforcement actions for violations of SIP emission
limits and courts may exercise their jurisdiction to determine what, if
any, relief is appropriate.
    For these reasons, the EPA is proposing to find Ga. Comp. R. &
Regs. 391-3-1-.02(2)(a)(7) substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision.

The EPA notes that in this SNPR it is only addressing this provision
with respect to its deficiency as an affirmative defense provision and
is not revising its February 2013 proposal with respect to the other
separate bases for the finding of substantial inadequacy of this
provision.
2. Mississippi
a. Petitioner's Analysis
    The Petitioner objected to three provisions in the Mississippi SIP
as being inconsistent with the CAA and the EPA's SSM Policy.\41\ Among
the other alleged SIP deficiencies, the Petitioner objected to two
generally applicable provisions in the Mississippi SIP that allow for
affirmative defenses for violations of otherwise applicable SIP
emission limitations during periods of upset, i.e., malfunctions (11-1-
2 Miss. Code R. Sec.  10.1) and unavoidable maintenance (11-1-2 Miss.
Code R. Sec.  10.3).\42\ First, the Petitioner objected to both of
these provisions based on its assertion that the CAA allows no
affirmative defense provisions in SIPs. Second, the Petitioner asserted
that even if affirmative defense provisions were permissible under the
CAA, the affirmative defenses in these provisions ``fall far short of
the EPA policy.'' Specifically, the Petitioner argued that the EPA's
guidance for affirmative defenses recommends that they ``are not
appropriate where a single source or a small group of sources has the
potential to cause an exceedance of the NAAQS or PSD increments,'' \43\
and Mississippi's provisions do not contain a restriction to address
this point. Further, the Petitioner argued that the affirmative
defenses in Mississippi's SIP are not limited to actions seeking civil
penalties and that they fail to meet other criteria ``that EPA requires
for acceptable defense provisions.'' \44\ Finally, the Petitioner
argued that the CAA and the EPA's SSM Policy interpreting it do not
allow affirmative defenses for excess emissions during maintenance
events under any circumstances.
---------------------------------------------------------------------------

    \41\ Petition at 29-30.
    \42\ Petition at 47-49.
    \43\ Petition at 48.
    \44\ Petition at 47-48.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 11-1-2 Miss. Code R. Sec.  10.1 and 11-1-2
Miss. Code R. Sec.  10.3 because they are deficient affirmative defense
provisions. By purporting to create a bar to enforcement that applies
not only to monetary penalties but also to injunctive relief, the EPA
reasoned that these provisions are inconsistent with the requirements
of CAA sections 113 and 304. The EPA also argued that by not including
sufficient criteria to assure that sources seeking to raise these
affirmative defenses have in fact been properly designed, maintained
and operated, and to assure that sources have taken all appropriate
steps to minimize excess emissions, the provision also fails to be
sufficiently narrowly drawn to justify shielding from monetary
penalties for violations during malfunctions. With respect to the
comparable affirmative defense for maintenance in 11-1-2 Miss. Code R.
Sec.  10.3, the EPA reiterated its long held position that no
affirmative defense is appropriate for violations that occur during
maintenance because maintenance is a normal mode of source operation
during which the source should be expected to comply with the
applicable emission limitations. Thus, the EPA previously proposed to
find that 11-1-2 Miss. Code R. Sec.  10.1 and 11-1-2 Miss. Code R.
Sec.  10.3 are not appropriate as affirmative defense provisions
because they are inconsistent with fundamental requirements of the CAA.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for 11-1-2 Miss.
Code R. Sec.  10.1 and 11-1-2 Miss. Code R. Sec.  10.3. The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether the provision met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304. The
EPA interprets the provisions of 11-1-2 Miss. Code R. Sec.  10.1 and
11-1-2 Miss. Code R. Sec.  10.3 to create an impermissible affirmative
defenses for violations of SIP emission limits. These provisions
operate to limit the jurisdiction of the federal court in an
enforcement action and to preclude both liability and any form of
judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA
believes that these provisions interfere with the intended enforcement
structure of the CAA, through which parties may seek to bring
enforcement actions for violations of SIP emission limits and courts
may exercise their jurisdiction to determine what, if any, relief is
appropriate.
    For these reasons, the EPA is proposing to find 11-1-2 Miss. Code
R. Sec.  10.1 and 11-1-2 Miss. Code R. Sec.  10.3 provisions
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to these provisions. The EPA
notes that in this SNPR it is only addressing 11-1-2 Miss. Code R.
Sec.  10.1 and 11-1-2 Miss. Code R. Sec.  10.3 with respect to the
deficiency as affirmative defense provisions and is not revising its
February 2013 proposal with respect to another SIP provision, 11-1-2
Miss. Code R. Sec.  10.2, for which the EPA has proposed to make a
finding of substantial inadequacy and to issue a SIP call on different
grounds.
3. South Carolina
a. The EPA's Evaluation
    In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified one affirmative
defense provision in the SIP for the state of South Carolina in S.C.
Code Ann. Regs. 62.1, Section II(G)(6). This provision provides that
permits for certain sources may contain an affirmative defense for
excess emissions that occur during emergencies. The permits at issue
embody federally enforceable emission limits that assure the sources
will remain below the threshold for major stationary sources subject to
the permitting requirements of title V of the CAA. By accepting these
emission limits in permits as authorized by this provision of the
state's SIP, these sources are treated as minor sources rather than
major sources for regulatory purposes.
    In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the

EPA had interpreted the CAA to permit states to elect to create
narrowly drawn affirmative defense provisions in SIPs, both for
malfunction events and for startup and shutdown events, so long as the
provisions were consistent with the criteria recommended by the Agency.
In the February 2013 proposal notice, the EPA had already proposed to
revise this interpretation of the CAA to permit states to develop
affirmative defense provisions only for malfunction events and not for
startup and shutdown events. The decision of the court in NRDC v. EPA
indicates that the EPA needs to revise the SSM Policy yet further.
    As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. The affirmative defense in S.C.
Code Ann. Regs. 62.1, Section II(G)(6) provides that if a source meets
certain factual criteria, then the occurrence of an emergency is an
``affirmative defense'' for any technology-based emission limitation
violations that occur during the emergency. The affirmative defense is
not limited to monetary penalties and appears to bar any form of relief
if the source meets the criteria for the defense. The EPA notes that
the affirmative defense for emergencies in S.C. Code Ann. Regs. 62.1,
Section II(G)(6) was not consistent with the EPA's prior interpretation
of the CAA and with its recommendations for such provisions in the 1999
SSM Guidance. Regardless of that fact, the EPA believes that this
provision impermissibly purports to alter or eliminate the jurisdiction
of federal courts to assess penalties or to impose other forms of
relief for violations of federally enforceable SIP or permit emission
limits. Under this provision, if the source is able to establish that
it met each of the specified criteria, then the provision purports to
bar any relief for those violations. Accordingly, the EPA believes that
this affirmative defense provision is inconsistent with the fundamental
enforcement structure of the CAA and the EPA thus believes that the
provision is not consistent with CAA requirements for SIP provisions.
b. The EPA's Proposal
    In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provisions applicable to excess emissions that occur during emergencies
in S.C. Code Ann. Regs. 62.1, Section II(G)(6). The EPA is proposing to
revise its interpretation of the CAA with respect to affirmative
defense provisions in SIPs. Previously the EPA assessed whether such
provisions met certain requirements, such as being limited to monetary
penalties rather than injunctive relief and containing sufficiently
robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets S.C. Code Ann. Regs. 62.1, Section II(G)(6) to
provide an affirmative defense that operates to limit the jurisdiction
of the federal court in an enforcement action and to limit the
authority of the court to impose monetary penalties or to impose other
forms of relief as contemplated in CAA sections 113 and 304. Thus, the
EPA believes that this provision interferes with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP emission limits and
courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
    For these reasons, the EPA is proposing to find S.C. Code Ann.
Regs. 62.1, Section II(G)(6) substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision. The EPA notes that in this SNPR it is only
addressing this provision with respect to its deficiency as an
affirmative defense provision and is not revising its February 2013
proposal with respect to the proposed action on the other provisions in
the South Carolina SIP that are at issue in the Petition.

D. Affected States in EPA Region V

1. Illinois
a. Petitioner's Analysis
    The Petitioner objected to three generally applicable provisions in
the Illinois SIP (Ill. Admin. Code tit. 35 Sec.  201.261, Ill. Admin.
Code tit. 35 Sec.  201.262 and Ill. Admin. Code tit. 35 Sec.  201.265)
which the Petitioner argued have the effect of providing discretionary
exemptions from otherwise applicable SIP emission limitations.\45\ The
Petitioner objected to these provisions on multiple grounds, including:
(i) that the provisions invite sources to request, during the
permitting process, advance permission to continue to operate during a
malfunction or breakdown and to request advance permission to
``violate'' otherwise applicable emission limitations during startup;
(ii) that the provisions state that, once granted, the advance
permission to violate the emission limitations ``shall be a prima facie
defense to an enforcement action''; and (iii) that the term ` ``prima
facie defense' is ambiguous in its operation.'' The Petitioner argued
that the latter provision is not clear regarding whether the defense is
to be evaluated ``in a judicial or administrative proceeding or whether
the Agency determines its availability.'' Allowing defenses to be
raised in these undefined contexts, the Petitioner argued, is
``inconsistent with the enforcement structure of the Clean Air Act.''
The Petitioner asserted that ``if . . . the `prima facie defense' is
anything short of the `affirmative defense,' '' as contemplated in the
1999 SSM Guidance, then ``it clearly has the potential to interfere
with EPA and citizen enforcement.''
---------------------------------------------------------------------------

    \45\ Petition at 33-36.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Ill. Admin. Code tit. 35 Sec.  201.261, Ill.
Admin. Code tit. 35 Sec.  201.262 and Ill. Admin. Code tit. 35 Sec.
201.265. The EPA proposed to grant the Petition for these provisions
even though the state has asserted that the effect of these provisions
together only provides sources with a prima facie defense in an
enforcement proceeding. Even if interpreted to provide an affirmative
defense rather than an automatic or discretionary exemption, however,
the EPA previously noted that the provisions do not provide a
permissible affirmative defense provision consistent with the
requirements of the CAA as interpreted in the EPA's recommendations in
the EPA's SSM Policy.
    In the February 2013 proposal notice, the EPA enumerated various
ways in which the provisions were not consistent with the EPA's
recommendations in the EPA's SSM Policy interpreting the CAA: (i) It is
not clear that the defense applies only to monetary penalties, which is
inconsistent with the requirements of CAA sections 113 and 304; (ii)
the defense applies to violations that occurred during startup periods,
which

is inconsistent with CAA sections 113 and 304; (iii) the provisions
shift the burden of proof to the enforcing party; and (iv) the
provisions do not include sufficient criteria to assure that sources
seeking to raise the affirmative defense have in fact been properly
designed, maintained and operated, and to assure that sources have
taken all appropriate steps to minimize excess emissions. Accordingly,
even if Ill. Admin. Code tit. 35 Sec.  201.261, Ill. Admin. Code tit.
35 Sec.  201.262 and Ill. Admin. Code tit. 35 Sec.  201.265 are
together interpreted to provide a prima facie defense to enforcement
rather than to provide exemptions, the EPA already proposed to find
that these provisions are substantially inadequate to meet CAA
requirements and thus proposed to issue a SIP call with respect to
these provisions.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for Ill. Admin. Code
tit. 35 Sec.  201.261, Ill. Admin. Code tit. 35 Sec.  201.262 and Ill.
Admin. Code tit. 35 Sec.  201.265. The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for
the assessment of civil penalties under section 113 or to interfere
with the rights of litigants to pursue enforcement consistent with
their rights under the citizen suit provision of section 304. To the
extent that Ill. Admin. Code tit. 35 Sec.  201.261, Ill. Admin. Code
tit. 35 Sec.  201.262 and Ill. Admin. Code tit. 35 Sec.  201.265
together do provide only a defense as characterized by the state rather
than an exemption, the EPA believes that they create an impermissible
affirmative defense for violations of SIP emission limits. These
provisions would operate together to limit the jurisdiction of the
federal court in an enforcement action and to preclude both liability
and any form of judicial relief contemplated in CAA sections 113 and
304. Thus, the EPA believes that these provisions interfere with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
    For these reasons, the EPA is proposing to find Ill. Admin. Code
tit. 35 Sec.  201.261, Ill. Admin. Code tit. 35 Sec.  201.262 and Ill.
Admin. Code tit. 35 Sec.  201.265 substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to these provisions. The EPA notes that in this SNPR it is only
addressing these provisions with respect to their deficiency as an
affirmative defense and is not revising its February 2013 proposal
notice with respect to the other separate bases for the finding of
substantial inadequacy for these provisions.
2. Indiana
a. Petitioner's Analysis
    The Petitioner objected to a generally applicable provision in the
Indiana SIP that allows for discretionary exemptions during
malfunctions (326 Ind. Admin. Code 1-6-4(a)).\46\ The Petitioner
objected to this provision on multiple grounds, including: (i) That it
provides an exemption from the otherwise applicable SIP emission
limitations; (ii) that it is ambiguous because it provides that excess
emissions during malfunction periods ``shall not be considered a
violation'' if the source demonstrates that a number of conditions are
met, but it does not specify to whom or in what forum such
demonstration must be made; (iii) that if the foregoing demonstration
need only be made to the satisfaction of the state, then this would
give a state official the sole authority to determine that the excess
emissions were not a violation and could thus be read to preclude
enforcement by the EPA or citizens; and (iv) that if the demonstration
is to be made in an enforcement context, then the provision could be
interpreted as providing an affirmative defense, but one that is
inconsistent with the requirements of the CAA as interpreted in the
EPA's SSM Policy.
---------------------------------------------------------------------------

    \46\ Petition at 36-37.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 326 Ind. Admin. Code 1-6-4(a). The EPA noted
at that time that even if it were to interpret 326 Ind. Admin. Code 1-
6-4(a) to be an affirmative defense applicable in an enforcement
context, then the provision is not consistent with the EPA's
recommendations for such affirmative defenses in the EPA's SSM Policy
interpreting the CAA. By purporting to create a bar to enforcement that
applies not just to monetary penalties but also to injunctive relief,
and by including criteria inconsistent with those recommended by the
EPA for affirmative defense provisions, this provision is inconsistent
with the requirements of CAA sections 113 and 304. For these reasons,
the EPA previously proposed to find that 326 Ind. Admin. Code 1-6-4(a)
is substantially inadequate to meet CAA requirements and proposed to
issue a SIP call with respect to this provision.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for 326 Ind. Admin.
Code 1-6-4(a). The EPA is proposing to revise its interpretation of the
CAA with respect to affirmative defense provisions in SIPs. Previously
the EPA assessed whether such provisions met certain requirements, such
as being limited to monetary penalties rather than injunctive relief
and containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. Now, the Agency
must evaluate such provisions to determine whether they are constructed
in a way that would purport to preclude federal court jurisdiction
under section 113 to assess civil penalties or other forms of relief
for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
    To the extent that 326 Ind. Admin. Code 1-6-4(a) provides only a
defense rather than an exemption, the EPA believes that it creates an
impermissible affirmative defense for violations of SIP emission
limits. The provision would operate to limit the jurisdiction of the
federal court in an enforcement action and to preclude both liability
and any form of judicial relief contemplated in CAA sections 113 and
304. Thus, the EPA believes that this provision interferes with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise

their jurisdiction to determine what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find 326 Ind. Admin.
Code 1-6-4(a) substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense and
is not revising its February 2013 proposal notice with respect to the
other separate bases for the finding of substantial inadequacy for the
provision.
3. Michigan
a. Petitioner's Analysis
    The Petitioner objected to a generally applicable provision in
Michigan's SIP that provides for an affirmative defense to monetary
penalties for violations of otherwise applicable SIP emission
limitations during periods of startup and shutdown (Mich. Admin. Code
r. 336.1916).\47\ The Petitioner objected to this provision on multiple
grounds, including: (i) That one of the criteria in the affirmative
defense provision, Mich. Admin. Code r. 336.1916, makes the defense
available to a single source or small group of sources as long as such
source did not ``cause[] an exceedance of the national ambient air
quality standards or any applicable prevention of significant
deterioration increment'' thereby applying to sources with the
``potential'' to cause violations of the NAAQS contrary to the
recommendations of EPA's 1999 SSM Guidance; and (ii) that the
affirmative defense provision is available for violations of ``an
applicable emission limitation,'' which Petitioner argued could be
construed by a court to include ``limits derived from federally
promulgated technology based standards, such as NSPSs and NESHAPs,''
contrary to EPA's interpretation of the CAA in the 1999 SSM Guidance to
preclude SIP-based affirmative defenses for violations of these federal
technology-based standards.
---------------------------------------------------------------------------

    \47\ Petition at 44-46.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Mich. Admin. Code r. 336.1916, which provides
for an affirmative defense to violations of applicable emission
limitations during startup and shutdown events. The EPA noted at that
time that an affirmative defense for excess emissions that occur during
planned events such as startup and shutdown was contrary to the EPA's
then current interpretation of the CAA to allow such affirmative
defenses only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For this reason, the EPA previously proposed to find
that Mich. Admin. Code r. 336.1916 is substantially inadequate to meet
CAA requirements and proposed to issue a SIP call with respect to this
provision.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for Mich. Admin.
Code r. 336.1916. The EPA is proposing to revise its interpretation of
the CAA with respect to affirmative defense provisions in SIPs.
Previously the EPA assessed whether such provisions met certain
requirements, such as being limited to monetary penalties rather than
injunctive relief and containing sufficiently robust criteria to assure
that the defense applied only in appropriately narrow circumstances.
Now, the Agency must evaluate such provisions to determine whether they
are constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to assess civil penalties or other forms
of relief for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
    The EPA interprets Mich. Admin. Code r. 336.1916 to provide an
affirmative defense that operates to limit the jurisdiction of the
federal court in an enforcement action and to preclude both liability
and any form of judicial relief contemplated in CAA sections 113 and
304. The fact that this affirmative defense applies during planned and
predictable events exacerbates this problem, but even if the provision
were applicable only to genuine malfunction events it is not a
permissible SIP provision. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find Mich. Admin. Code
r. 336.1916 substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to this
provision.

E. Affected States and Local Jurisdictions in EPA Region VI

1. Arkansas
a. Petitioner's Analysis
    The Petitioner objected to two provisions in the Arkansas SIP as
inconsistent with the CAA and the EPA's SSM Policy.\48\ One of these
provisions, Reg. 19.602, provides an ``affirmative defense'' applicable
to violations by sources in certain circumstances. The Petitioner
objected to Reg. 19.602 because it provides a ``complete affirmative
defense'' for excess emissions that occur during emergency conditions.
The Petitioner argued that this provision, which the state may have
modeled after the EPA's title V regulations, is impermissible because
its application is not clearly limited to operating permits.
---------------------------------------------------------------------------

    \48\ Petition at 24. The Petitioner cites to 014-01-1 Ark. Code
R. Sec. Sec.  19.1004(H) and 19.602. The EPA interprets these
citations as references to Reg. 19.1004(H) and Reg. 19.602 of the
Arkansas Pollution Control & Ecology Commission (APC&EC), Regulation
No. 19--Regulations of the Arkansas Plan of Implementation for Air
Pollution Control, as approved by the EPA on Apr. 12, 2007 (72 FR
18394). For ease of description, we refer herein to Reg. 19.602.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Reg. 19.602. The EPA explained its view that
Reg. 19.602 is an impermissible affirmative defense provision because
it does not explicitly limit the defense to monetary penalties, it
establishes criteria that are inconsistent with those recommended in
the EPA's SSM Policy, and it can be read to create different or
additional defenses from those that are provided in underlying federal
technology-based emission limitations. As a consequence, the EPA
reasoned that Reg. 19.602 is inconsistent with the requirements for SIP
provisions in CAA sections 110(a)(2)(A), 110(a)(2)(C) and 302(k). For
these reasons, the EPA previously proposed to find that Reg. 19.602 is
substantially inadequate to meet CAA requirements and proposed to issue
a SIP call with respect to this provision.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of

substantial inadequacy and the SIP call for Reg. 19.602. The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets Reg. 19.602 to provide an affirmative defense
that operates to limit the jurisdiction of the federal court in an
enforcement action and to preclude both liability and any form of
judicial relief contemplated in CAA sections 113 and 304. Thus, the EPA
believes that this provision interferes with the intended enforcement
structure of the CAA, through which parties may seek to bring
enforcement actions for violations of SIP emission limits and courts
may exercise their jurisdiction to determine what, if any, relief is
appropriate.
    For these reasons, the EPA is proposing to find Reg. 19.602
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to this provision. The EPA
notes that in this SNPR it is only addressing this provision with
respect to its deficiency as an affirmative defense provision and is
not revising its February 2013 proposal with respect to the proposed
action on the other provision in the Arkansas SIP that is at issue in
the Petition.
2. New Mexico
a. Petitioner's Analysis
    The Petitioner objected to three provisions in the New Mexico SIP
that provide affirmative defenses for excess emissions that occur
during malfunctions (<IP_ADDRESS> NMAC), during startup and shutdown
(<IP_ADDRESS> NMAC), and during emergencies (<IP_ADDRESS> NMAC).\49\ The
Petitioner objected to the inclusion of these provisions in the SIP
based on its view that affirmative defense provisions are always
inconsistent with CAA requirements. The Petitioner also argued that
each of these affirmative defenses is generally available to all
sources, which is in contravention of the EPA's recommendation in the
SSM Policy that affirmative defenses should not be available to ``a
single source or groups of sources that has the potential to cause an
exceedance of the NAAQS.'' Finally, the Petitioner argued that the
affirmative defense provision applicable to emergency events is
impermissible because it was modeled after the EPA's title V
regulations, which are not meant to apply to SIP provisions.
---------------------------------------------------------------------------

    \49\ Petition at 54-57. The EPA interprets the Petitioner's
reference to N.M. Code R. Sec.  <IP_ADDRESS>, N.M. Code R. Sec.
<IP_ADDRESS> and N.M. Code R. Sec.  <IP_ADDRESS> as citations to
<IP_ADDRESS> NMAC, <IP_ADDRESS> NMAC and <IP_ADDRESS> NMAC, as approved by
the EPA on Sept. 14, 2009 (74 FR 46910) (hereinafter referred to as
<IP_ADDRESS> NMAC, <IP_ADDRESS> NMAC and <IP_ADDRESS> NMAC).
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to <IP_ADDRESS> NMAC, which includes an affirmative
defense applicable during startup and shutdown events that is contrary
to the EPA's interpretation of the CAA. The EPA noted at that time that
an affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's current
interpretation of the CAA to allow such affirmative defenses only for
events beyond the control of the source, i.e., during malfunctions. In
the February 2013 proposal notice, the EPA proposed to revise its SSM
Policy to reflect this interpretation of the CAA, and to update the
recommendations it previously made concerning affirmative defense
provisions applicable to startup and shutdown events in the 1999 SSM
Guidance. The EPA also proposed to grant the Petition with respect to
<IP_ADDRESS> NMAC, which includes an affirmative defense applicable
during malfunction events. The EPA previously reasoned that this
provision is inconsistent with the CAA because it neither limits the
defense to only those sources that do not have the potential to cause
exceedances of the NAAQS or PSD increments nor requires sources to make
an ``after the fact'' showing that no such exceedances actually
occurred as an element of the affirmative defense. Finally, the EPA
proposed to grant the Petition with respect to <IP_ADDRESS> NMAC. The EPA
previously stated its belief that this provision is an impermissible
affirmative defense because it does not explicitly limit the defense to
monetary penalties, it establishes criteria that are inconsistent with
those in the EPA's SSM Policy, and it can be read to create different
or additional defenses from those that are provided in underlying
federal technology-based emission limitations. Thus, the EPA previously
proposed to find that all three of these provisions are inconsistent
with CAA sections 110(a)(2)(A), 110(a)(2)(C) and 302(k), and with
respect to CAA sections 113 and 304.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for the affirmative
defense provisions applicable to excess emissions that occur during
malfunctions (<IP_ADDRESS> NMAC), during startup and shutdown (<IP_ADDRESS>
NMAC), and during emergencies <IP_ADDRESS> NMAC). The EPA is proposing to
revise its interpretation of the CAA with respect to affirmative
defense provisions in SIPs. Previously the EPA assessed whether such
provisions met certain requirements, such as being limited to monetary
penalties rather than injunctive relief and containing sufficiently
robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets <IP_ADDRESS> NMAC and <IP_ADDRESS> NMAC to provide
affirmative defenses that operate to limit the jurisdiction of the
federal court in an enforcement action and to limit the authority of
the court to impose monetary penalties as contemplated in CAA sections
113 and 304. As to <IP_ADDRESS> NMAC, the EPA interprets this provision
to operate to limit the jurisdiction of the federal court in an
enforcement action and to limit the authority of the court to impose
any form of relief contemplated in CAA sections 113 and 304. Thus, the
EPA believes that each of these provisions interferes with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP

emission limits and courts may exercise their jurisdiction to determine
what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find <IP_ADDRESS> NMAC,
<IP_ADDRESS> NMAC and <IP_ADDRESS> NMAC substantially inadequate to meet
CAA requirements and the EPA is thus proposing to issue a SIP call with
respect to these provisions.
3. New Mexico: Albuquerque-Bernalillo County
a. The EPA's Evaluation
    In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified three
affirmative defense provisions in the SIP for the state of New Mexico
that apply in the Albuquerque-Bernalillo County area. These provisions
provide affirmative defenses available to sources for excess emissions
that occur during malfunctions (<IP_ADDRESS>.A NMAC), during startup and
shutdown (<IP_ADDRESS>.B NMAC) and during emergencies (<IP_ADDRESS>.C
NMAC). The EPA acknowledges that it explicitly approved these
affirmative defense provisions in 2010, after ascertaining that they
were consistent with the Agency's interpretation of the CAA and its
recommendations for such provisions in the 1999 SSM Guidance,
applicable at that point in time.\50\
---------------------------------------------------------------------------

    \50\ See, ``Approval and Promulgation of Implementation Plans;
Albuquerque-Bernalillo County, NM; Excess Emissions,'' 75 FR 5698
(Feb. 4, 2010).
---------------------------------------------------------------------------

    In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
    As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Although the EPA previously
determined that <IP_ADDRESS>.A NMAC, <IP_ADDRESS>.B NMAC and
<IP_ADDRESS>.C NMAC were consistent with CAA requirements, the Agency
now believes that these provisions impermissibly purport to alter or
eliminate the jurisdiction of federal courts to assess penalties for
violations of SIP emission limits. In the case of the affirmative
defenses applicable to malfunctions and to startup and shutdown, the
provisions set forth the elements of an affirmative defense to be
asserted by sources in the event of violations during such events. In
the case of the affirmative defense applicable to emergencies, the
provision sets forth the elements of an affirmative defense to be
asserted in the event of violations during emergencies. For each of
these affirmative defense provisions, if the source is able to
establish that it met each of the specified criteria to a trier of fact
in an enforcement proceeding, then the provision purports to bar any
civil penalties for those violations (and in the case of the
affirmative defense for emergencies could be construed to bar other
forms of relief as well). Accordingly, the EPA believes that each of
these affirmative defense provisions is inconsistent with the
fundamental enforcement structure of the CAA and the EPA thus believes
that these provisions are not consistent with CAA requirements for SIP
provisions.
b. The EPA's Proposal
    In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provisions applicable to excess emissions that occur during
malfunctions (<IP_ADDRESS>.A NMAC), during startup and shutdown
(<IP_ADDRESS>.B NMAC) and during emergencies (<IP_ADDRESS>.C NMAC). The
EPA is proposing to revise its interpretation of the CAA with respect
to affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets <IP_ADDRESS>.A NMAC and <IP_ADDRESS>.B NMAC to
provide affirmative defenses that operate to limit the jurisdiction of
the federal court in an enforcement action and to limit the authority
of the court to impose monetary penalties as contemplated in CAA
sections 113 and 304. As to <IP_ADDRESS>.C NMAC, the EPA interprets this
provision to operate to limit the jurisdiction of the federal court in
an enforcement action and to limit the authority of the court to impose
any form of relief contemplated in CAA sections 113 and 304. Thus, the
EPA believes that each of these provisions interferes with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP emission limits and
courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
    For these reasons, the EPA is proposing to find <IP_ADDRESS>.A NMAC,
<IP_ADDRESS>.B NMAC and <IP_ADDRESS>.C NMAC substantially inadequate to
meet CAA requirements and the EPA is thus proposing to issue a SIP call
with respect to these provisions. The EPA notes that removal of
<IP_ADDRESS>.A NMAC, <IP_ADDRESS>.B NMAC and <IP_ADDRESS>.C NMAC from the
SIP will render <IP_ADDRESS>.D NMAC, <IP_ADDRESS>.E, <IP_ADDRESS>.B (15)
(concerning reporting by a source of intent to assert an affirmative
defense for a violation), a portion of <IP_ADDRESS> NMAC (concerning the
objective of establishing affirmative defense provisions) and
<IP_ADDRESS> NMAC (concerning actions where a determination has been
made under <IP_ADDRESS>.E NMAC) superfluous and no longer operative, and
the EPA thus recommends that these provisions be removed as well.
4. Texas
a. The EPA's Evaluation
    In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA

has identified four affirmative defense provisions in the SIP for the
state of Texas. These provisions provide affirmative defenses available
to sources for excess emissions that occur during upsets (30 TAC
101.222(b)), unplanned events (30 TAC 101.222(c)), upsets with respect
to opacity limits (30 TAC 101.222(d)) and unplanned events with respect
to opacity limits (30 TAC 101.222(e)).\51\ The EPA acknowledges that it
explicitly approved these affirmative defense provisions in 2010, after
ascertaining that they were consistent with the Agency's interpretation
of the CAA and its recommendations for such provisions in the 1999 SSM
Guidance, applicable at that point in time. Moreover, the EPA defended
its approval of these specific provisions (as well as its disapproval
of related provisions relevant to affirmative defenses for planned
events) in litigation in the U.S. Court of Appeals for the 5th Circuit.
---------------------------------------------------------------------------

    \51\ The EPA notes that ``upsets'' and ``unplanned events'' in
these provisions are what are more commonly referred to as
malfunctions, as confirmed by the state at the time the EPA approved
these provisions as part of the SIP. See, ``Approval and
Promulgation of Implementation Plans; Texas; Excess Emissions During
Startup, Shutdown, Maintenance, and Malfunction,'' 75 FR 68989 (Nov.
10, 2010).
---------------------------------------------------------------------------

    In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
    As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Although the EPA previously
determined that 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC 101.222(d)
and 30 TAC 101.222(e) were consistent with CAA requirements, the Agency
now believes that these provisions impermissibly purport to alter or
eliminate the jurisdiction of federal courts to assess penalties for
violations of SIP emission limits. For all of these affirmative
defenses applicable to upsets and unplanned events, the provisions set
forth the elements of an affirmative defense to be asserted by sources
in the event of violations during such events. For each of these
affirmative defense provisions, if the source is able to establish that
it met each of the specified criteria to a trier of fact in an
enforcement proceeding, then the provision purports to bar any civil
penalties for those violations. Accordingly, the EPA believes that each
of these affirmative defense provisions is inconsistent with the
fundamental enforcement structure of the CAA and the EPA thus believes
that these provisions are not consistent with CAA requirements for SIP
provisions.
b. The EPA's Proposal
    In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for the affirmative defense
provisions applicable to excess emissions that occur during upsets (30
TAC 101.222(b)), unplanned events (30 TAC 101.222(c)), upsets with
respect to opacity limits (30 TAC 101.222(d)), and unplanned events
with respect to opacity limits (30 TAC 101.222(e)). The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets 30 TAC 101.222(b), 30 TAC 101.222(c), 30 TAC
101.222(d), and 30 TAC 101.222(e) to provide affirmative defenses that
operate to limit the jurisdiction of the federal court in an
enforcement action and to limit the authority of the court to impose
monetary penalties as contemplated in CAA sections 113 and 304. Thus,
the EPA believes that each of these provisions interferes with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise their jurisdiction to determine what, if any,
relief is appropriate. The EPA appreciates the efforts previously
undertaken by the state to amend its SIP to make it consistent with the
CAA, as interpreted in the Agency's 1999 SSM Guidance, but the EPA must
now revise its SSM Policy with respect to affirmative defense
provisions in SIPs.
    For these reasons, the EPA is proposing to find 30 TAC 101.222(b),
30 TAC 101.222(c), 30 TAC 101.222(d) and 30 TAC 101.222(e)
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to these provisions. The EPA
notes that removal of these four provisions from the SIP will render
cross-references to these provisions in 30 TAC 101.221(e) (as it
applies to 30 TAC 101.222(b)-(e)), 30 TAC 101.222(f) and 30 TAC
101.222(g) superfluous and no longer operative, and the EPA thus
recommends that these provisions be removed as well.

F. Affected State in EPA Region VIII: Colorado

1. Petitioner's Analysis
    The Petitioner objected to two affirmative defense provisions in
the Colorado SIP that provide for affirmative defenses to qualifying
sources during malfunctions (5 Colo. Code Regs Sec.  1001-2(II.E)) and
during periods of startup and shutdown (5 Colo. Code Regs Sec.  1001-
2(II.J)).\52\ The Petitioner acknowledged that this state has correctly
revised its SIP in important ways in order to be consistent with CAA
requirements, as interpreted in the EPA's SSM Policy, including
providing affirmative defense provisions that are limited to monetary
penalties, that do not apply in actions to enforce federal standards
such as NSPS or NESHAP approved into the SIP, and that meet ``almost
word for word'' the recommendations of the 1999 SSM Guidance.
Nevertheless, the Petitioner had two concerns with these SIP
provisions.
---------------------------------------------------------------------------

    \52\ Petition at 25-27.
---------------------------------------------------------------------------

    First, the Petitioner objected to both of these provisions based on
its assertion that the CAA allows no affirmative defense provisions in
SIPs. Second, the Petitioner asserted that even if affirmative defense
provisions were permissible under the CAA, the state

had properly followed EPA guidance in the affirmative defense provision
applicable to startup and shutdown events but failed to do so in the
affirmative defense provision applicable to malfunctions. Specifically,
the Petitioner argued that the EPA's own guidance for affirmative
defenses recommended that they ``are not appropriate where a single
source or a small group of sources has the potential to cause an
exceedance of the NAAQS or PSD increments.'' \53\ Instead, the state's
affirmative defense for malfunction events is potentially available to
any source, if it can establish that the excess emissions during the
event did not result in exceedances of ambient air quality standards
that could be attributed to the source.\54\ The Petitioner objected to
this as not merely inconsistent with the EPA's 1999 SSM Guidance but
also as an approach ``that does not have the same deterrent effect'' on
sources and that would not have the same effects on sources to assure
that they comply at all times in order to avoid violations. As a
practical matter, the Petitioner also argued that including this
element to the affirmative defense could ``mire enforcement proceedings
in the question of whether or not the NAAQS or PSD increments were
exceeded as a matter of fact.''
---------------------------------------------------------------------------

    \53\ Id. at 25.
    \54\ See, 5 Colo. Code Regs Sec.  1001-2(II.E.1.j).
---------------------------------------------------------------------------

2. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to 5 Colo. Code Regs Sec.  1001-2(II.J) because
it provides an affirmative defense for violations due to excess
emissions applicable during startup and shutdown events, contrary to
the EPA's interpretation of the CAA. The EPA noted at that time that an
affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's then
current interpretation of the CAA to allow such affirmative defenses
only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For these reasons, the EPA previously proposed to
find that 5 Colo. Code Regs Sec.  1001-2(II.J) is substantially
inadequate to meet CAA requirements and proposed to issue a SIP call
with respect to this provision.
    The EPA previously proposed to deny the Petition with respect to 5
Colo. Code Regs Sec.  1001-2(II.E), because this provision includes an
affirmative defense applicable to malfunction events that is consistent
with the requirements of the CAA, as interpreted by the EPA in the SSM
Policy. In particular, the EPA proposed to deny the Petition with
respect to the claim that this provision is inconsistent with the CAA
because it is available to sources or groups of sources that might have
the potential to cause an exceedance of the NAAQS or PSD increments.
The EPA reasoned that an acceptable alternative approach is to require
the source to establish, as an element of the affirmative defense, that
the excess emissions in question did not cause such impacts. The EPA
noted in the February 2013 proposal notice that it was updating its
previous guidance recommendations to states for SIPs in the SSM Policy
in order to indicate that in lieu of restricting the application of an
affirmative defense provision only to sources without the potential to
cause NAAQS violations, the state could elect to require a source to
prove that the excess emissions did not cause an exceedance of the
NAAQS or PSD increments as an element of the defense instead.
Accordingly, the EPA previously proposed to find that 5 Colo. Code Regs
Sec.  1001-2(II.E) is consistent with CAA requirements and declined to
make a finding of substantial inadequacy with respect to this
provision.
3. The EPA's Revised Proposal
    In this SNPR, the EPA is proposing to revise the basis for the
finding of substantial inadequacy and the SIP call for the affirmative
defense provisions applicable to excess emissions that occur during
startup and shutdown in 5 Colo. Code Regs Sec.  1001-2(II.J). The EPA
is also reversing its prior denial of the Petition with respect to the
affirmative defense provision applicable to malfunctions in 5 Colo.
Code Regs Sec.  1001-2(II.E) and is proposing to find that provision
substantially inadequate and to issue a SIP call for that provision as
well. The EPA is proposing to revise its interpretation of the CAA with
respect to affirmative defense provisions in SIPs. Previously the EPA
assessed whether such provisions met certain requirements, such as
being limited to monetary penalties rather than injunctive relief and
containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. Now, the Agency
must evaluate such provisions to determine whether they are constructed
in a way that would purport to preclude federal court jurisdiction
under section 113 to assess civil penalties or other forms of relief
for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
    The EPA interprets 5 Colo. Code Regs Sec.  1001-2(II.J) and 5 Colo.
Code Regs Sec.  1001-2(II.E) to provide affirmative defenses that
operate to limit the jurisdiction of the federal court in an
enforcement action to assess monetary penalties under certain
circumstances as contemplated in CAA sections 113 and 304. Thus, the
EPA believes that these provisions interfere with the intended
enforcement structure of the CAA, through which parties may seek to
bring enforcement actions for violations of SIP emission limits and
courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
    For these reasons, the EPA is proposing to find 5 Colo. Code Regs
Sec.  1001-2(II.J) and 5 Colo. Code Regs Sec.  1001-2(II.E)
substantially inadequate to meet CAA requirements and the EPA is thus
proposing to issue a SIP call with respect to these provisions.

G. Affected States and Local Jurisdictions in EPA Region IX

1. Arizona
    a. Petitioner's Analysis
    The Petitioner objected to two provisions in the Arizona Department
of Environmental Quality's (ADEQ) Rule R18-2-310, which provide
affirmative defenses for excess emissions during malfunctions (AAC
Section R18-2-310(B)) and for excess emissions during startup or
shutdown (AAC Section R18-2- 310(C)).\55\ First, the Petitioner
asserted that all affirmative defenses for excess emissions are
inconsistent with the CAA and should be removed from the Arizona SIP.
---------------------------------------------------------------------------

    \55\ Petition at 20-22.
---------------------------------------------------------------------------

    Additionally, quoting from the EPA's recommendation in the SSM
Policy that such affirmative defenses should not be available to ``a
single source or small group of sources [that] has the potential to
cause an exceedance of the NAAQS or PSD increments,'' the Petitioner
contended that ``sources with the power to cause an exceedance should
be strictly controlled at all times, not just when they actually cause
an

exceedance.'' \56\ Although acknowledging that R18-2-310 contains some
limitations to address this issue, the Petitioner argued that the
limitations in the SIP provision do not reduce the incentive for such
sources to emit at levels close to those that would violate a NAAQS or
PSD increment in the way that entirely disallowing affirmative defenses
for these types of sources would. Accordingly, the Petitioner requested
that the EPA require Arizona either to remove R18-2-310(B) and (C) from
the SIP entirely or to revise the rule so that affirmative defenses
``are not available to a single source or one of a small group of
sources who have the potential to cause an exceedance of the NAAQS.''
---------------------------------------------------------------------------

    \56\ Petition at 20.
---------------------------------------------------------------------------

    Second, the Petitioner asserted that the provision applicable to
startup and shutdown periods (R18-2-310(C)) does not include an
explicit requirement for a source seeking to establish an affirmative
defense to prove that ``the excess emissions were not part of a
recurring pattern indicative of inadequate design, operation, or
maintenance.'' The Petitioner provided a table specifically comparing
the provisions in R18-2-310(C) against the EPA's recommended criteria
for affirmative defense provisions in the 1999 SSM Guidance to show
that R18-2-310(C) does not contain a specific provision to address this
recommended criterion and stated that the SIP provision should be
revised to require such a demonstration.
    b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to deny the
Petition with respect to the arguments concerning ADEQ's affirmative
defense provisions for malfunctions in R18-2-310(B) because this
provision is consistent with the requirements of the CAA, as
interpreted by the EPA in the SSM Policy. In particular, the EPA
proposed to deny the Petition with respect to the claim that this
provision is inconsistent with the CAA because it is available to
sources or groups of sources that might have the potential to cause an
exceedance of the NAAQS or PSD increments. The EPA reasoned that an
acceptable alternative approach is to require the source to establish,
as an element of the affirmative defense, that the excess emissions in
question did not cause such impacts. The EPA noted in the February 2013
proposal notice that it was updating its previous guidance
recommendations to states for SIPs in the SSM Policy in order to
indicate that in lieu of restricting the application of an affirmative
defense provision only to sources without the potential to cause NAAQS
violations, the state could elect to require a source to prove that the
excess emissions did not cause a violation of the NAAQS as an element
of the defense instead. Accordingly, the EPA previously proposed to
find that R18-2-310(B) is consistent with CAA requirements and declined
to make a finding of substantial inadequacy with respect to this
provision.
    With respect to the arguments concerning ADEQ's affirmative defense
provisions for startup and shutdown periods in R18-2- 310(C), the EPA
proposed to grant the Petition because it provides an affirmative
defense for violations due to excess emissions applicable during
startup and shutdown events, contrary to the EPA's current
interpretation of the CAA. The EPA noted at that time that an
affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's then
current interpretation of the CAA to allow such affirmative defenses
only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For these reasons, the EPA previously proposed to
find that R18-2-310(C) is substantially inadequate to meet CAA
requirements and proposed to issue a SIP call with respect to this
provision.
    c. The EPA's Revised Proposal
    In this SNPR, the EPA is reversing its prior proposed denial of the
Petition with respect to the affirmative defense provision applicable
to malfunctions in R18-2-310(B) and is proposing to find that provision
substantially inadequate and to issue a SIP call for that provision.
The EPA is also revising the prior basis for the finding of substantial
inadequacy and the SIP call for the affirmative defense provisions
applicable to excess emissions that occur during startup and shutdown
in R18-2-310(C). The EPA is proposing to revise its interpretation of
the CAA with respect to affirmative defense provisions in SIPs.
Previously the EPA assessed whether such provisions met certain
requirements, such as being limited to monetary penalties rather than
injunctive relief and containing sufficiently robust criteria to assure
that the defense applied only in appropriately narrow circumstances.
Now, the Agency must evaluate such provisions to determine whether they
are constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to assess civil penalties or other forms
of relief for violations of SIP emission limits, to prevent courts from
considering the statutory factors for the assessment of civil penalties
under section 113 or to interfere with the rights of litigants to
pursue enforcement consistent with their rights under the citizen suit
provision of section 304.
    The EPA interprets R18-2-310(B) and R18-2-310(C) to provide
affirmative defenses that operate to limit the jurisdiction of the
federal court in an enforcement action to assess monetary penalties
under certain circumstances as contemplated in CAA sections 113 and
304. Thus, the EPA believes that these provisions interfere with the
intended enforcement structure of the CAA, through which parties may
seek to bring enforcement actions for violations of SIP emission limits
and courts may exercise their jurisdiction to determine what, if any,
relief is appropriate.
    For these reasons, the EPA is proposing to find R18-2-310(B) and
R18-2-310(C) substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to these
provisions.
2. Arizona: Maricopa County
a. Petitioner's Analysis
    The Petitioner objected to two provisions in the Maricopa County
Air Pollution Control Regulations that provide affirmative defenses for
excess emissions during malfunctions (Maricopa County Air Pollution
Control Regulation 3, Rule 140, Sec.  401) and for excess emissions
during startup or shutdown (Maricopa County Air Pollution Control
Regulation 3, Rule 140, Sec.  402).\57\ These provisions in Maricopa
County Air Quality Department (MCAQD) Rule 140 are similar to the
affirmative defense provisions in ADEQ R18-2-310.\58\
---------------------------------------------------------------------------

    \57\ Petition at 23.
    \58\ Petition at 20-22.
---------------------------------------------------------------------------

    First, the Petitioner asserted that the affirmative defense
provisions in Rule 140 are problematic for the same reasons identified
in the Petition with respect to ADEQ R18-2-310. Specifically, the
Petitioner argued that affirmative defenses should not be allowed in
any SIP and, alternatively, that to the extent affirmative defenses are
permissible, the provisions in Rule 140 addressing exceedances of the
ambient standards are ``inappropriately permissive and do not comply
with EPA guidance.'' \59\ Accordingly, the

Petitioner requested that the EPA require Arizona and/or MCAQD either
to remove these provisions from the SIP entirely or to revise them so
that they are not available to a single source or small group of
sources that has the potential to cause a NAAQS exceedance. Second, the
Petitioner asserted that the provisions for startup and shutdown in
Rule 140 do not include an explicit requirement for a source seeking to
establish an affirmative defense to prove that ``the excess emissions
in question were not part of a recurring pattern indicative of
inadequate design, operation, or maintenance.'' The Petitioner argued
that Rule 140 should be revised to require such a demonstration.
---------------------------------------------------------------------------

    \59\ Id.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to deny the
Petition with respect to the arguments concerning MCAQD's affirmative
defense provisions for malfunctions in Regulation 3, Rule 140, Sec.
401 because this provision is consistent with the requirements of the
CAA, as interpreted by the EPA in the SSM Policy. In particular, the
EPA proposed to deny the Petition with respect to the claim that this
provision is inconsistent with the CAA because it is available to
sources or groups of sources that might have the potential to cause an
exceedance of the NAAQS or PSD increments. The EPA reasoned that an
acceptable alternative approach is to require the source to establish,
as an element of the affirmative defense, that the excess emissions in
question did not cause such impacts. The EPA noted in the February 2013
proposal notice that it was updating its previous guidance
recommendations to states for SIPs in the SSM Policy in order to
indicate that in lieu of restricting the application of an affirmative
defense provision only to sources without the potential to cause NAAQS
violations, the state could elect to require a source to prove that the
excess emissions did not cause a violation of the NAAQS as an element
of the defense instead. Accordingly, the EPA previously proposed to
find that Regulation 3, Rule 140, Sec.  401 is consistent with CAA
requirements and declined to make a finding of substantial inadequacy
with respect to this provision.
    With respect to the arguments concerning ADEQ's affirmative defense
provisions for startup and shutdown periods in Regulation 3, Rule 140,
Sec.  402, the EPA previously proposed to grant the Petition because it
provides an affirmative defense for violations due to excess emissions
applicable during startup and shutdown events, contrary to the EPA's
interpretation of the CAA. The EPA noted at that time that an
affirmative defense for excess emissions that occur during planned
events such as startup and shutdown was contrary to the EPA's then
current interpretation of the CAA to allow such affirmative defenses
only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. For these reasons, the EPA previously proposed to
find that Maricopa County Air Pollution Control Regulation 3, Rule 140,
Sec.  402 is substantially inadequate to meet CAA requirements and
proposed to issue a SIP call with respect to this provision.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is reversing its prior proposed denial of the
Petition with respect to the affirmative defense provision applicable
to malfunctions in Regulation 3, Rule 140, Sec.  401 and is proposing
to find that provision substantially inadequate and to issue a SIP call
for that provision. The EPA is also revising the prior basis for the
finding of substantial inadequacy and the SIP call for the affirmative
defense provisions applicable to excess emissions that occur during
startup and shutdown in Regulation 3, Rule 140, Sec.  402. The EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets Regulation 3, Rule 140, Sec.  401 and Regulation
3, Rule 140, Sec.  402 to provide affirmative defenses that operate to
limit the jurisdiction of the federal court in an enforcement action to
assess monetary penalties under certain circumstances as contemplated
in CAA sections 113 and 304. Thus, the EPA believes that these
provisions interfere with the intended enforcement structure of the
CAA, through which parties may seek to bring enforcement actions for
violations of SIP emission limits and courts may exercise their
jurisdiction to determine what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find Regulation 3, Rule
140, Sec.  401 and Regulation 3, Rule 140, Sec.  402 substantially
inadequate to meet CAA requirements and the EPA is thus proposing to
issue a SIP call with respect to these provisions.
3. California: Eastern Kern Air Pollution Control District
a. The EPA's Evaluation
    In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified an affirmative
defense provision in the SIP for the state of California applicable in
the Eastern Kern Air Pollution Control District (APCD). The affirmative
defense is included in Kern County ``Rule 111 Equipment Breakdown.''
This SIP provision provides an affirmative defense available to sources
for excess emissions that occur during a breakdown condition (i.e.,
malfunction).
    In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.

    As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Kern County Rule 111 includes
the elements of an affirmative defense to be asserted by sources in the
event of violations during breakdown conditions. The provision defines
``breakdown conditions'' as any unforeseeable failure or malfunction of
air pollution control equipment or monitoring equipment. If the source
is able to establish that it met each of the specified criteria to an
``air pollution control officer'' (i.e., an official of the state or
the Eastern Kern APCD), then the provision purports to bar any
enforcement action and thus any form of remedy for the violations that
occur during the malfunction. Accordingly, the EPA believes that the
affirmative defense provision created by Kern County Rule 111 is
inconsistent with the fundamental enforcement structure of the CAA and
the EPA thus believes that the provision is not consistent with CAA
requirements for SIP provisions.
b. The EPA's Proposal
    In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for Kern County Rule 111 Equipment
Breakdown in the California SIP applicable in the Eastern Kern
APCD.\60\ The EPA is proposing to revise its interpretation of the CAA
with respect to affirmative defense provisions in SIPs. Previously the
EPA assessed whether such provisions met certain requirements, such as
being limited to monetary penalties rather than injunctive relief and
containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. The EPA notes that
Kern County Rule 111 did not meet the Agency's prior interpretation of
the CAA with regard to affirmative defense provisions in SIPs.
Regardless of that fact, however, the Agency must now evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
---------------------------------------------------------------------------

    \60\ The EPA is proposing in this SNPR to make a finding of
substantial inadequacy and to issue a SIP call for Kern County Rule
111 Equipment Breakdown in the California SIP as it applies in each
the Eastern Kern APCD and the San Joaquin Valley APCD.
---------------------------------------------------------------------------

    The EPA interprets Kern County ``Rule 111 Equipment Breakdown'' to
provide an affirmative defense that operates to limit the jurisdiction
of the federal court in an enforcement action and to limit the
authority of the court to impose monetary penalties as contemplated in
CAA sections 113 and 304. The provision provides that if a violating
source meets certain criteria set forth in Rule 111, then ``no
enforcement action may be taken.'' By proscribing any enforcement by
any party if the source meets certain criteria, Rule 111 creates an
affirmative defense that would preclude enforcement for excess
emissions that would otherwise constitute a violation of the applicable
SIP emission limitations. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find Kern County ``Rule
111 Equipment Breakdown'' substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision.
4. California: Imperial County Air Pollution Control District
a. The EPA's Evaluation
    In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified an affirmative
defense provision in the SIP for the state of California applicable in
the Imperial Valley APCD. The affirmative defense is included in
Imperial County ``Rule 111 Equipment Breakdown.'' This SIP provision
provides an affirmative defense available to sources for excess
emissions that occur during a breakdown condition (i.e., malfunction).
    In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
    As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Imperial County Rule 111
includes the elements of an affirmative defense to be asserted by
sources in the event of violations during breakdown conditions. The
provision defines ``breakdown conditions'' as any unforeseeable failure
or malfunction of air pollution control equipment or monitoring
equipment. If the source is able to establish that it met each of the
specified criteria to an ``air pollution control officer'' (i.e., an
official of the state or the Imperial Valley APCD), then the provision
purports to bar any enforcement action and thus any form of remedy for
the violations that occur during the malfunction. Accordingly, the EPA
believes that the affirmative defense provision created by Imperial
County Rule 111 is inconsistent with the fundamental enforcement
structure of the CAA and the EPA thus believes that the provision is
not consistent with CAA requirements for SIP provisions.
b. The EPA's Proposal
    In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for Imperial County ``Rule 111
Equipment Breakdown'' in the California SIP applicable in the Imperial
Valley APCD. The EPA is proposing to revise its interpretation of the
CAA with respect to affirmative defense provisions in SIPs. Previously
the EPA assessed whether such provisions met certain requirements, such
as being limited to monetary penalties rather than injunctive relief
and containing sufficiently robust criteria to assure that the defense
applied only in appropriately narrow circumstances. The EPA notes that
Imperial County Rule 111 did not meet the Agency's prior interpretation
of the CAA with regard to affirmative defense provisions in SIPs.
Regardless of that fact, however, the Agency must now evaluate such

provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets Imperial County ``Rule 111 Equipment Breakdown''
to provide an affirmative defense that operates to limit the
jurisdiction of the federal court in an enforcement action and to limit
the authority of the court to impose monetary penalties as contemplated
in CAA sections 113 and 304. The provision provides that if a violating
source meets certain criteria set forth in Rule 111, then ``no
enforcement action may be taken.'' By proscribing any enforcement by
any party if the source meets certain criteria, Rule 111 creates an
affirmative defense that would preclude enforcement for excess
emissions that would otherwise constitute a violation of the applicable
SIP emission limitations. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find Imperial County
``Rule 111 Equipment Breakdown'' substantially inadequate to meet CAA
requirements and the EPA is thus proposing to issue a SIP call with
respect to this provision.
5. California: San Joaquin Valley Air Pollution Control District
a. The EPA's Evaluation
    In addition to evaluating specific affirmative defense provisions
identified by the Petitioner, the EPA is also evaluating other
affirmative defense provisions that may be affected by the Agency's
revision of its interpretation of CAA requirements for such provisions
in SIPs. As part of its review, the EPA has identified affirmative
defense provisions in the SIP for the state of California applicable in
the San Joaquin Valley APCD. The affirmative defenses are included in:
(i) Fresno County ``Rule 110 Equipment Breakdown''; (ii) Kern County
``Rule 111 Equipment Breakdown''; (iii) Kings County ``Rule 111
Equipment Breakdown''; (iv) Madera County ``Rule 113 Equipment
Breakdown''; (v) Stanislaus County ``Rule 110 Equipment Breakdown'';
and (vi) Tulare County ``Rule 111 Equipment Breakdown.'' \61\ Each of
these SIP provisions provides an affirmative defense available to
sources for excess emissions that occur during a breakdown condition
(i.e., malfunction).
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    \61\ The EPA notes that comparable provisions appear in the
California SIP for the San Joaquin Valley APCD in Merced County (in
``Rule 109 Equipment Breakdown'') and in San Joaquin County (in
``Rule 110 Equipment Breakdown''). However, the EPA interprets these
provisions to be enforcement discretion provisions, applicable only
to the state or air district personnel. In each of these counties,
the applicable rules provide that if the source meets certain
criteria, then ``the Air Pollution Control Officer may elect to take
no enforcement action.'' The EPA believes that these provisions
unequivocally apply only to the exercise of enforcement discretion
by the state or air district personnel and are not operative in the
event of enforcement by the EPA or others under the authority of the
citizen suit provision of CAA section 304. For this reason, the EPA
is not proposing to make a finding of substantial inadequacy and a
SIP call for these comparable provisions in Merced County Rule 109
and San Joaquin County Rule 110. If the state of California
disagrees with this interpretation, the EPA anticipates that the
state will inform the Agency of that fact though comment on this
SNPR.
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    In light of the court's decision in NRDC v. EPA, the EPA is
proposing to revise its SSM Policy concerning the issue of affirmative
defense provisions. In particular, the EPA is proposing to reverse its
prior recommendations to states on this issue provided in the 1999 SSM
Guidance. In that guidance, the EPA had interpreted the CAA to permit
states to elect to create narrowly drawn affirmative defense provisions
in SIPs, both for malfunction events and for startup and shutdown
events, so long as the provisions were consistent with the criteria
recommended by the Agency. In the February 2013 proposal notice, the
EPA had already proposed to revise this interpretation of the CAA to
permit states to develop affirmative defense provisions only for
malfunction events and not for startup and shutdown events. The
decision of the court in NRDC v. EPA indicates that the EPA needs to
revise the SSM Policy yet further.
    As discussed in sections IV and V of this SNPR, the EPA is
proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Fresno County Rule 110, Kern
County Rule 111, Kings County Rule 111, Madera County Rule 113,
Stanislaus County Rule 110 and Tulare County Rule 111 include the
elements of an affirmative defense to be asserted by sources in the
event of violations during breakdown conditions. Each of these
provisions defines ``breakdown conditions'' in comparable ways as any
unforeseeable failure or malfunction of air pollution control equipment
or monitoring equipment. If the source is able to establish that it met
each of the specified criteria to a ``Control Officer'' (i.e., an
official of the state or the San Joaquin Valley APCD), then the
provision purports to bar any enforcement action and thus any form of
remedy for the violations that occur during the malfunction.
Accordingly, the EPA believes that each of the affirmative defense
provisions created by Fresno County Rule 110, Kern County Rule 111,
Kings County Rule 111, Madera County Rule 113, Stanislaus County Rule
110 and Tulare County Rule 111 is inconsistent with the fundamental
enforcement structure of the CAA and the EPA thus believes that these
provisions are not consistent with CAA requirements for SIP provisions.
b. The EPA's Proposal
    In this SNPR, the EPA is proposing to make a finding of substantial
inadequacy and to issue a SIP call for six provisions in the California
SIP applicable in the San Joaquin Valley APCD: (i) Fresno County ``Rule
110 Equipment Breakdown''; (ii) Kern County ``Rule 111 Equipment
Breakdown''; (iii) Kings County ``Rule 111 Equipment Breakdown''; (iv)
Madera County ``Rule 113 Equipment Breakdown''; (v) Stanislaus County
``Rule 110 Equipment Breakdown''; and (vi) Tulare County ``Rule 111
Equipment Breakdown.'' \62\ The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. The EPA notes that Fresno County Rule 110, Kern
County Rule 111, Kings County Rule 111, Madera County Rule 113,
Stanislaus County Rule 110 and Tulare County Rule 111 did not meet the
Agency's prior interpretation of the CAA with regard to affirmative
defense provisions in SIPs. Regardless of that fact, however, the
Agency must now evaluate such provisions to determine whether they are
constructed in a way that would purport to preclude federal court
jurisdiction under section 113 to

assess civil penalties or other forms of relief for violations of SIP
emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
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    \62\ The EPA is proposing in this SNPR to make a finding of
substantial inadequacy and to issue a SIP call for Kern County Rule
111 Equipment Breakdown in the California SIP as it applies in each
the Eastern Kern APCD and the San Joaquin Valley APCD.
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    The EPA interprets Fresno County Rule 110, Kern County Rule 111,
Kings County Rule 111, Madera County Rule 113, Stanislaus County Rule
110 and Tulare County Rule 111 to provide affirmative defenses that
operate to limit the jurisdiction of the federal court in an
enforcement action and to limit the authority of the court to impose
monetary penalties as contemplated in CAA sections 113 and 304. These
provisions provide that if a violating source meets certain criteria
set forth in each of the Rules, then ``no enforcement action may be
taken.'' By proscribing any enforcement by any party if the source
meets certain criteria, each of these provisions creates an affirmative
defense that would preclude enforcement for excess emissions that would
otherwise constitute a violation of the applicable SIP emission
limitations. Thus, the EPA believes that these provisions interfere
with the intended enforcement structure of the CAA, through which
parties may seek to bring enforcement actions for violations of SIP
emission limits and courts may exercise their jurisdiction to determine
what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find Fresno County
``Rule 110 Equipment Breakdown,'' Kern County ``Rule 111 Equipment
Breakdown,'' Kings County ``Rule 111 Equipment Breakdown,'' Madera
County ``Rule 113 Equipment Breakdown,'' Stanislaus County ``Rule 110
Equipment Breakdown'' and Tulare County ``Rule 111 Equipment
Breakdown'' substantially inadequate to meet CAA requirements and the
EPA is thus proposing to issue a SIP call with respect to these
provisions.

H. Affected States and Local Jurisdictions in EPA Region X

1. Alaska
a. Petitioner's Analysis
    The Petitioner objected to a provision in the Alaska SIP that
provides an excuse for ``unavoidable'' excess emissions that occur
during SSM events, including startup, shutdown, scheduled maintenance
and ``upsets'' (Alaska Admin. Code tit. 18 Sec.  50.240).\63\ The
provision provides: ``Excess emissions determined to be unavoidable
under this section will be excused and are not subject to penalty. This
section does not limit the department's power to enjoin the emission or
require corrective action.'' The Petitioner argued that this provision
excuses excess emissions in violation of the CAA and the EPA's SSM
Policy, which require all such emissions to be treated as violations of
the applicable SIP emission limitations. The Petitioner further argued
that it is unclear whether the provision could be interpreted to bar
enforcement actions brought by the EPA or citizens, because it is
drafted as if the state were the sole enforcement authority. Finally,
the Petitioner pointed out, the provision is worded as if it were an
affirmative defense, but it uses criteria for enforcement discretion.
Finally, the Petitioner pointed out, the provision is worded as if it
were an affirmative defense, but it uses criteria more relevant for
enforcement discretion. In other words, the Petitioner argued that the
provision is inconsistent with the EPA's recommendations for
affirmative defense provisions in SIPs in the 1999 SSM Guidance.
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    \63\ Petition at 18-20.
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b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Alaska Admin. Code tit. 18 Sec.  50.240. To
the extent that this provision is intended to be an affirmative
defense, the EPA believed it to be deficient to meet the requirements
of the CAA for such provisions. The provision applies to excess
emissions during startup, shutdown and maintenance events, contrary to
the EPA's then current interpretation of the CAA to allow such
affirmative defenses only for malfunctions. The EPA noted at that time
that an affirmative defense for excess emissions that occur during
planned events such as startup and shutdown was contrary to the EPA's
then current interpretation of the CAA to allow such affirmative
defenses only for events beyond the control of the source, i.e., during
malfunctions. In the February 2013 proposal notice, the EPA proposed to
revise its SSM Policy to reflect this interpretation of the CAA, and to
update the recommendations it previously made concerning affirmative
defense provisions applicable to startup and shutdown events in the
1999 SSM Guidance. Additionally, the EPA previously reasoned that the
section of Alaska Admin. Code tit. 18 Sec.  50.240 applying to
``upsets'' is inadequate because the criteria referenced are not
sufficiently similar to those recommended in the EPA's SSM Policy for
affirmative defense provisions applicable to malfunctions. Thus, the
EPA previously considered Alaska Admin. Code tit. 18 Sec.  50.240 to be
inconsistent with the fundamental requirements of the CAA and thus
proposed to find the provision substantially inadequate to meet CAA
requirements and to issue a SIP call with respect to the provision.
c. The EPA's Revised Proposal
    In this SNPR, the EPA is revising the prior basis for the finding
of substantial inadequacy and the SIP call for the affirmative defense
provisions applicable to excess emissions that occur during startup,
shutdown and upsets in Alaska Admin. Code tit. 18 Sec.  50.240. The EPA
is proposing to revise its interpretation of the CAA with respect to
affirmative defense provisions in SIPs. Previously the EPA assessed
whether such provisions met certain requirements, such as being limited
to monetary penalties rather than injunctive relief and containing
sufficiently robust criteria to assure that the defense applied only in
appropriately narrow circumstances. Now, the Agency must evaluate such
provisions to determine whether they are constructed in a way that
would purport to preclude federal court jurisdiction under section 113
to assess civil penalties or other forms of relief for violations of
SIP emission limits, to prevent courts from considering the statutory
factors for the assessment of civil penalties under section 113 or to
interfere with the rights of litigants to pursue enforcement consistent
with their rights under the citizen suit provision of section 304.
    The EPA interprets Alaska Admin. Code tit. 18 Sec.  50.240 to
provide affirmative defenses that operate to limit the jurisdiction of
the federal court in an enforcement action to assess monetary penalties
or impose injunctive relief under certain circumstances as contemplated
in CAA sections 113 and 304. Thus, the EPA believes that this provision
interferes with the intended enforcement structure of the CAA, through
which parties may seek to bring enforcement actions for violations of
SIP emission limits and courts may exercise their jurisdiction to
determine what, if any, relief is appropriate.
    For these reasons, the EPA is proposing to find Alaska Admin. Code
tit. 18 Sec.  50.240 substantially inadequate to meet CAA requirements
and the EPA is thus proposing to issue a SIP call with respect to this
provision. The EPA notes that in this SNPR it is only addressing this
provision with respect to its deficiency as an affirmative defense
provision and is not revising its

February 2013 proposal notice with respect to the other separate bases
for the finding of substantial inadequacy of this provision.
2. Washington
a. Petitioner's Analysis
    The Petitioner objected to a provision in the Washington SIP that
provides an excuse for ``unavoidable'' excess emissions that occur
during certain SSM events, including startup, shutdown, scheduled
maintenance and ``upsets'' (Wash. Admin. Code Sec.  173-400-107).\64\
The provision provides that ``[e]xcess emissions determined to be
unavoidable under the procedures and criteria under this section shall
be excused and are not subject to penalty.'' The Petitioner argued that
this provision excuses excess emissions, in violation of the CAA and
the EPA's SSM Policy, which require all such emissions to be treated as
violations of the applicable SIP emission limitations. The Petitioner
further argued that it is unclear whether the provision could be
interpreted to bar enforcement actions brought by the EPA or citizens,
because it is drafted as if the state were the sole enforcement
authority. Finally, the Petitioner pointed out, the provision is worded
as if it were an affirmative defense, but it uses criteria more
relevant for enforcement discretion.
---------------------------------------------------------------------------

    \64\ Petition at 71-72.
---------------------------------------------------------------------------

b. The EPA's Prior Proposal
    In the February 2013 proposal notice, the EPA proposed to grant the
Petition with respect to Wash. Admin. Code Sec.  173-400-107. The
provision applies to startup, shutdown and maintenance events, contrary
to the EPA's then current interpretation of the CAA to allow such
affirmative defenses only for malfunctions. The EPA noted at that time
that an affirmative defense for excess emissions that occur during
planned events such as startup, shutdown and maintenance was contrary
to the EPA's then current interpretation of the CAA to allow such
affirmative defenses only for events beyond the control of the source,
i.e., during malfunctions. In the February 2013 proposal notice, the
EPA proposed to revise its SSM Policy to reflect this interpretation of
the CAA, and to update the recommendations it previously made
concerning affirmative defense provisions applicable to startup and
shutdown events in the 1999 SSM Guidance.\65\ Furthermore, the EPA
previously reasoned that the section of Wash. Admin. Code Sec.  173-
400-107 applying to ``upsets'' is inadequate because the criteria
referenced are not sufficiently similar to those recommended in the
EPA's SSM Policy for affirmative defense provisions applicable to
malfunctions. Moreover, the provision appears to bar the EPA and
citizens from seeking penalties and injunctive relief. Thus, the EPA
previously considered Wash. Admin. Code Sec.  173-400-107 to be
inconsistent with the fundamental requirements of the CAA and the EPA
thus proposed to find the provision substantially inadequate to meet
CAA requirements and proposed to issue a SIP call with respect to the
provision.
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    \65\ The EPA notes that its SSM Policy guidance has always
stated that affirmative defense provisions in SIPs are not
appropriate for excess emissions that occur during maintenance
activities. The 1999 SSM Guidance only made recommendations with
respect to affirmative defense provisions applicable to malfunctions
and to startup and shutdown. The 1983 SSM Guidance recommended that
``scheduled maintenance is a predictable event which can be
scheduled at the discretion of the operator'' and therefore
recommended even against the exercise of enforcement discretion for
violations during maintenance except under limited circumstances.
See 1983 SSM Guidance at Attachment, Page 3.
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c. The EPA's Revised Proposal
    In this SNPR, the EPA is revising the prior basis for the proposed
finding of substantial inadequacy and the proposed SIP call for the
affirmative defense provisions applicable to excess emissions that
occur during startup, shutdown, maintenance and upsets in Wash. Admin.
Code Sec.  173-400-107. The EPA is proposing to revise its
interpretation of the CAA with respect to affirmative defense
provisions in SIPs. Previously the EPA assessed whether such provisions
met certain requirements, such as being limited to monetary penalties
rather than injunctive relief and containing sufficiently robust
criteria to assure that the defense applied only in appropriately
narrow circumstances. Now, the Agency must evaluate such provisions to
determine whether they are constructed in a way that would purport to
preclude federal court jurisdiction under section 113 to assess civil
penalties or other forms of relief for violations of SIP emission
limits, to prevent courts from considering the statutory factors for