(Document certified by Superintendent of Documents <pkisupport@gpo.gov>) Signed by Superintendent of Documents <pkisupport@gpo.gov> Time: 2013.02.22 05:06:30 Z Reason: GPO attests that this document has not been altered since it was disseminated by GPO Location: US GPO, Washington, DC 20401
Vol. 78 Friday, 
No. 36 February 22, 2013 


Part III 
Environmental Protection Agency 

40 CFR Part 52 
State Implementation Plans: Response to Petition for Rulemaking; Findings 
of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to 
Excess Emissions During Periods of Startup, Shutdown, and Malfunction; 
Proposed Rule 


12460 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

ENVIRONMENTAL PROTECTION 
AGENCY 

40 CFR Part 52 

[EPA�HQ�OAR�2012�0322; FRL�9782�2] 

RIN 2060�AR68 

State Implementation Plans: Response 
to Petition for Rulemaking; Findings of 
Substantial Inadequacy; and SIP Calls 
To Amend Provisions Applying to 
Excess Emissions During Periods of 
Startup, Shutdown, and Malfunction 

AGENCY: Environmental Protection 
Agency (EPA). 
ACTION: Proposed rule. 


SUMMARY: The EPA is proposing to take 
action on a petition for rulemaking filed 
by the Sierra Club with the EPA 
Administrator on June 30, 2011 (the 
Petition). The Petition includes 
interrelated requests concerning the 
treatment of excess emissions in state 
rules by sources during periods of 
startup, shutdown, or malfunction 
(SSM). The EPA is proposing to grant in 
part and to deny in part the request in 
the Petition to rescind its policy 
interpreting the Clean Air Act (CAA) to 
allow states to have appropriately 
drawn state implementation plan (SIP) 
provisions that provide affirmative 
defenses to monetary penalties for 
violations during periods of SSM. The 
EPA is also proposing either to grant or 
to deny the Petition with respect to the 
specific existing SIP provisions related 
to SSM in each of 39 states identified by 
the Petitioner as inconsistent with the 
CAA. Further, for each of those states 
where the EPA proposes to grant the 
Petition concerning specific provisions, 
the EPA also proposes to find that the 
existing SIP provision is substantially 
inadequate to meet CAA requirements 
and thus under CAA authority proposes 
a ��SIP call.�� For those states for which 
the EPA proposes a SIP call, the EPA 
also proposes a schedule for the states 
to submit a corrective SIP revision. 
Finally, the EPA is also proposing to 
deny the request in the Petition that the 
EPA discontinue reliance on 
interpretive letters from states to clarify 
any potential ambiguity in SIP 
submissions, even in circumstances 
where the EPA may determine that this 
approach is appropriate and has 
adequately documented that approach 
in a rulemaking action. This action 
reflects the EPA�s current SSM Policy 
for SIPs. 

DATES: Comments. Comments must be 
received on or before March 25, 2013. 

Public Hearing. If anyone contacts the 
EPA requesting a public hearing by 

March 11, 2013, we will hold a public 

hearing on March 12, 2013. 
ADDRESSES: Submit your comments, 
identified by Docket ID No. EPA�HQ� 
OAR�2012�0322, by one of the 
following methods: 

� http://www.regulations.gov: Follow 
the online instructions for submitting 
comments. 
� Email: a-and-r-docket@epa.gov. 
� Fax: (202) 566�9744. 
� Mail: Attention Docket ID No. EPA� 
HQ�OAR�2012�0322, U.S. 
Environmental Protection Agency, EPA 
West (Air Docket), 1200 Pennsylvania 
Avenue NW., Mail Code: 6102T, 
Washington, DC 20460. Please include a 
total of two copies. 
� Hand Delivery: U.S. Environmental 
Protection Agency, EPA West (Air 
Docket), 1301 Constitution Avenue 
Northwest, Room 3334, Washington, DC 
20004, Attention Docket ID No. EPA� 
HQ�OAR�2012�0322. Such deliveries 
are only accepted during the Docket�s 
normal hours of operation, and special 
arrangements should be made for 
deliveries of boxed information. 
Instructions. Direct your comments to 
Docket ID No. EPA�HQ�OAR�2012� 
0322. The EPA�s policy is that all 
comments received will be included in 
the public docket without change and 
may be made available online at 
www.regulations.gov, including any 
personal information provided, unless 
the comment includes information 
claimed to be Confidential Business 
Information (CBI) or other information 
whose disclosure is restricted by statute. 
Do not submit information that you 
consider to be CBI or otherwise 
protected through www.regulations.gov 
or email. The www.regulations.gov Web 
site is an ��anonymous access�� system, 
which means the EPA will not know 
your identity or contact information 
unless you provide it in the body of 
your comment. If you send an email 
comment directly to the EPA without 
going through www.regulations.gov, 
your email address will be 
automatically captured and included as 
part of the comment that is placed in the 
public docket and made available on the 
Internet. If you submit an electronic 
comment, the EPA recommends that 
you include your name and other 
contact information in the body of your 
comment and with any CD you submit. 
If the EPA cannot read your comment 
due to technical difficulties and cannot 
contact you for clarification, the EPA 
may not be able to consider your 
comment. Electronic files should avoid 
the use of special characters, avoid any 
form of encryption, and be free of any 
defects or viruses. For additional 

information about the EPA�s public 
docket visit the EPA Docket Center 
homepage at www.epa.gov/epahome/ 
dockets.htm. For additional instructions 
on submitting comments, go to section 

I.C of the SUPPLEMENTARY INFORMATION 
section of this document. 
Docket. All documents in the docket 
are listed in the www.regulations.gov 
index. Although listed in the index, 
some information is not publicly 
available, e.g., CBI or other information 
whose disclosure is restricted by statute. 
Certain other material, such as 
copyrighted material, will be publicly 
available only in hard copy. Publicly 
available docket materials are available 
either electronically at 
www.regulations.gov or in hard copy at 
the U.S. Environmental Protection 
Agency, Air Docket, EPA/DC, EPA West 
Building, Room 3334, 1301 Constitution 
Ave. NW., Washington, DC. The Public 
Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone 
number for the Public Reading Room is 
(202) 566�1744, and the telephone 
number for the Air Docket is (202) 566� 
1742. 
Public Hearing: If a public hearing is 
held, it will be held on March 12, 2013, 
at the EPA Ariel Rios East building, 
Room 1153, 1301 Constitution Avenue, 
Washington, DC 20460. The public 
hearing will convene at 9 a.m. (Eastern 
Standard Time) and continue until the 
later of 6 p.m. or 1 hour after the last 
registered speaker has spoken. People 
interested in presenting oral testimony 
or inquiring as to whether a hearing is 
to be held should contact Ms. Pamela 
Long, Air Quality Planning Division, 
Office of Air Quality Planning and 
Standards (C504�01), U.S. 
Environmental Protection Agency, 
Research Triangle Park, NC 27711, 
telephone (919) 541�0641, fax number 

(919) 541�5509, email address 
long.pam@epa.gov, at least 5 days in 
advance of the public hearing (see 
DATES). People interested in attending 
the public hearing must also call Ms. 
Long to verify the time, date, and 
location of the hearing. The public 
hearing will provide interested parties 
the opportunity to present data, views, 
or arguments concerning the proposed 
action. The EPA will make every effort 
to accommodate all speakers who arrive 
and register. A lunch break is scheduled 
from 12:30 p.m. until 2 p.m. Because 
this hearing is being held at U.S. 
government facilities, individuals 
planning to attend the hearing should be 
prepared to show valid picture 
identification to the security staff in 
order to gain access to the meeting 
room. In addition, you will need to 

Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 12461 

obtain a property pass for any personal 
belongings you bring with you. Upon 
leaving the building, you will be 
required to return this property pass to 
the security desk. No large signs will be 
allowed in the building, cameras may 
only be used outside of the building, 
and demonstrations will not be allowed 
on federal property for security reasons. 
The EPA may ask clarifying questions 
during the oral presentations but will 
not respond to the presentations at that 
time. Written statements and supporting 
information submitted during the 
comment period will be considered 
with the same weight as oral comments 
and supporting information presented at 
the public hearing. If a hearing is held 
on March 12, 2013, written comments 
on the proposed rule must be 
postmarked by April 11, 2013. 
Commenters should notify Ms. Long if 
they will need specific equipment, or if 

there are other special needs related to 
providing comments at the hearing. The 
EPA will provide equipment for 
commenters to show overhead slides or 
make computerized slide presentations 
if we receive special requests in 
advance. Oral testimony will be limited 
to 5 minutes for each commenter. The 
EPA encourages commenters to provide 
the EPA with a copy of their oral 
testimony electronically (via email or 
CD) or in hard copy form. The hearing 
schedule, including lists of speakers, 
will be posted on the EPA�s Web site at 

www.epa.gov/air/urbanair/sipstatus/. 

Verbatim transcripts of the hearings and 
written statements will be included in 
the docket for the rulemaking. The EPA 
will make every effort to follow the 
schedule as closely as possible on the 
day of the hearing; however, please plan 
for the hearing to run either ahead of 
schedule or behind schedule. 

FOR FURTHER INFORMATION CONTACT: If 
you have questions concerning the 
public hearing, please contact Ms. 
Pamela Long, U.S. Environmental 
Protection Agency, Office of Air Quality 
Planning and Standards, Air Quality 
Planning Division, (C504�01), Research 
Triangle Park, NC 27711, telephone 

(919) 541�0641, fax number (919) 541� 
5509, email address: long.pam@epa.gov 
(preferred method for registering). 
Questions concerning this proposed rule 
should be addressed to Ms. Lisa Sutton, 
U.S. EPA, Office of Air Quality Planning 
and Standards, State and Local 
Programs Group, (C539�01), Research 
Triangle Park, NC 27711, telephone 
number (919) 541�3450, email at 
sutton.lisa@epa.gov. 

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

EPA 

Contact for regional office (person, mailing address, telephone

regional 

State

No.)

office 

I ................. 


Alison Simcox, Environmental Scientist, EPA Region 1, 5 Post 

Connecticut, Massachusetts, Maine, New Hampshire, Rhode Is-
Office Square, Suite 100, Boston, MA 02109�3912, (617) 

land, and Vermont. 
918�1684. 
II ................ 

Paul Truchan, EPA Region 2, 290 Broadway, 25th Floor, New 

New Jersey, New York, Puerto Rico, and Virgin Islands. 
York, NY 10007�1866, (212) 637�3711. 
III ............... 

Harold Frankford, EPA Region 3, 1650 Arch Street, Philadel-

District of Columbia, Delaware, Maryland, Pennsylvania, Virphia, 
PA 19103�2029, (215) 814�2108. 

ginia, and West Virginia. 
IV ............... 

Joel Huey, EPA Region 4, Atlanta Federal Center, 61 Forsyth 

Alabama, Florida, Georgia, Kentucky, Mississippi, North Caro-
Street SW., Atlanta, GA 30303�8960, (404) 562�9104. 

lina, South Carolina, and Tennessee. 
V ................ 

Christos Panos, Air and Radiation Division (AR�18J), EPA Re-

Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin. 
gion 5, 77 West Jackson Boulevard, Chicago, IL 60604� 
3507, (312) 353�8328. 

VI ............... 


Alan Shar (6PD�L), EPA Region 6, Fountain Place 12th Floor, 

Arkansas, Louisiana, New Mexico, Oklahoma, and Texas. 
Suite 1200, 1445 Ross Avenue, Dallas, TX 75202�2733, 

(214) 665�6691. 
VII .............. 
Lachala Kemp, EPA Region 7, Air Planning and Development 

Iowa, Kansas, Missouri, and Nebraska. 
Branch, 11201 Renner Boulevard, Lenexa, KS 66219, (913) 
551�7214. Alternate contact is Ward Burns, (913) 551�7960. 

VIII ............. 


Adam Clark, Air Quality Planning Unit (8P�AR) Air Program, Of-

Colorado, Montana, North Dakota, South Dakota, Utah, and 
fice of Partnership and Regulatory Assistance, EPA Region 8, 

Wyoming. 
1595 Wynkoop Street, Denver, CO 80202�1129, (303) 312� 
7104. 


IX ............... 


Lisa Tharp, EPA Region 9, Air Division, 75 Hawthorne Street 

Arizona; California; Hawaii and the Pacific Islands; Indian Coun(
AIR�8), San Francisco, CA 94105, (415) 947�4142. 

try within Region 9 and Nevada. 
X ................ 

Donna Deneen, Environmental Engineer, Office of Air, Waste 

Alaska, Idaho, Oregon, and Washington. 
and Toxics (AWT�107), EPA Region 10, 1200 Sixth Avenue, 
Suite 900, Seattle, WA 98101, (206) 553�6706. 

I. General Information 
A. Does this action apply to me? 
Entities potentially affected by this 
rule include states, U.S. territories, local 
authorities, and eligible tribes that are 
currently administering, or may in the 
future administer, the EPA-approved 
implementation plans (��air agencies��).1 

1 The EPA respects the unique relationship 
between the U.S. government and tribal authorities 
and acknowledges that tribal concerns are not 
interchangeable with state concerns. Under the 
CAA and EPA regulations, a tribe may, but is not 

required to, apply for eligibility to have a tribal 
implementation plan (TIP). For convenience, we 
refer to ��air agencies�� in this rulemaking 
collectively when meaning to refer in general to 
states, the District of Columbia, U.S. territories, 
local air permitting authorities, and eligible tribes 
that are currently administering, or may in the 
future administer, EPA-approved implementation 
plans. The EPA notes that the petition under 
evaluation does not identify any specific provisions 
related to tribal implementation plans. We therefore 
refer to ��state�� or ��states�� rather than ��air agency�� 
or ��air agencies�� when meaning to refer to one, 
some, or all of the 39 states identified in the 
Petition. We also use ��state�� or ��states�� rather than 
��air agency�� or ��air agencies�� when quoting or 

The EPA�s action on the Petition is 
potentially of interest to all such entities 
because the EPA is evaluating issues 
related to basic CAA requirements for 
SIPs. Through this rulemaking, the EPA 
is both clarifying and applying its 
interpretation of the CAA with respect 
to SIP provisions applicable to excess 
emissions during SSM events. In 
addition, the EPA may find specific SIP 

paraphrasing the CAA or other document that uses 
that term even when the original referenced passage 
may have applicability to tribes as well. 


12462 Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 

provisions in states identified in the 
Petition to be substantially inadequate 
to meet CAA requirements, pursuant to 
CAA section 110(k)(5), and thus those 
states will potentially be affected by this 
rulemaking directly. For example, if a 
state�s existing SIP provision allows an 
automatic exemption for excess 
emissions during periods of startup, 
shutdown, or malfunction, such that 
these excess emissions do not constitute 
a violation of the otherwise applicable 
emission limitations of the SIP, then the 
EPA may determine that the SIP 
provision is substantially inadequate 
because the provision is inconsistent 
with fundamental requirements of the 
CAA. This rule may also be of interest 
to the public and to owners and 
operators of industrial facilities that are 
subject to emission limits in SIPs, 
because it may require changes to state 
rules covering excess emissions. When 
finalized, this action will embody the 
EPA�s updated SSM Policy for SIP 
provisions relevant to excess emissions 
during SSM events. 

B. Where can I get a copy of this 
document and other related 
information? 
In addition to being available in the 
docket, an electronic copy of this 
proposal notice will also be available on 
the World Wide Web. Following 
signature by the EPA Assistant 
Administrator, a copy of this notice will 
be posted on the EPA�s Web site, under 
SSM SIP Call 2013, at www.epa.gov/air/ 
urbanair/sipstatus. In addition to this 
notice, other relevant documents are 
located in the docket, including a copy 
of the Petition and copies of each of the 
four guidance documents pertaining to 
excess emissions issued by the EPA in 
1982, 1983, 1999, and 2001, which are 
discussed in more detail later in this 
proposal notice. 

C. What should I consider as I prepare 
my comments? 
1. Submitting CBI. Do not submit this 
information to the EPA through 
www.regulations.gov or email. Clearly 
mark the part or all of the information 
that you claim to be CBI. For CBI 
information in CD that you mail to the 
EPA, mark the outside of the CD as CBI 
and then identify electronically within 
the CD the specific information that is 
claimed as CBI. In addition to one 
complete version of the comment that 
includes information claimed as CBI, a 
copy of the comment that does not 
contain the information claimed as CBI 
must be submitted for inclusion in the 
public docket. Information so marked 
will not be disclosed except in 
accordance with procedures set forth in 
40 CFR part 2. Send or deliver 
information identified as CBI only to the 
following address: Roberto Morales, 
OAQPS Document Control Officer 
(C404�02), U.S. EPA, Research Triangle 
Park, NC 27711, Attention Docket ID 
No. EPA�HQ�OAR�2012�0322. 

2. Tips for preparing your comments. 
When submitting comments, remember 
to: 
� Identify the rulemaking by docket 
number and other identifying 
information (subject heading, Federal 
Register date, and page number). 
� Follow directions�The agency may 
ask you to respond to specific questions 
or organize comments by referencing a 
Code of Federal Regulations (CFR) part 
or section number. 
� Explain why you agree or disagree; 
suggest alternatives and substitute 
language for your requested changes. 
� Describe any assumptions and 
provide any technical information and/ 
or data that you used. 
� If you estimate potential costs or 
burdens, explain how you arrived at 
your estimate in sufficient detail to 
allow for it to be reproduced. 
� Provide specific examples to 
illustrate your concerns, and suggest 
alternatives. 
� Explain your views as clearly as 
possible, avoiding the use of profanity 
or personal threats. 
� Make sure to submit your 
comments by the comment period 
deadline identified. 
D. How is the preamble organized? 
The information presented in this 
preamble is organized as follows: 

I. General Information 
A. Does this action apply to me? 
B. Where can I get a copy of this document 
and other related information? 
C. What should I consider as I prepare my 
comments? 
D. How is the preamble organized? 
E. What is the meaning of key terms used 
in this notice? 
II. Overview of Proposed Rule 
A. How is the EPA proposing to respond 
to the Petition? 
B. What did the Petitioner request? 
C. To which air agencies does this 
proposed rulemaking apply and why? 
D. What is the EPA proposing for any state 
that receives a finding of substantial 
inadequacy and a SIP call? 
E. What are potential impacts on affected 
states and sources? 
F. What happens if an affected state fails 
to meet the SIP submission deadline? 
G. What happens in an affected state in the 
interim period starting when the EPA 
promulgates the final SIP call and ending 
when the EPA approves the required SIP 
revision? 
III. Statutory, Regulatory, and Policy 
Background 
IV. Proposed Action in Response to Request 
To Rescind the EPA Policy Interpreting 
the CAA To Allow Appropriate 
Affirmative Defense Provisions 
A. Petitioner�s Request 
B. The EPA�s Response 
V. Proposed Action in Response to Request 
for the EPA�s Review of Specific Existing 
SIP Provisions for Consistency With 
CAA Requirements 
A. Petitioner�s Request 
B. The EPA�s Response 
VI. Proposed Action in Response To Request 
That the EPA Limit SIP Approval to the 
Text of State Regulations and Not Rely 
Upon Additional Interpretive Letters 
From the State 
A. Petitioner�s Request 
B. The EPA�s Response 
VII. Clarifications, Reiterations, and 
Revisions to the EPA�s SSM Policy 
A. Applicability of Emission Limitations 
During Periods of Startup and Shutdown 
B. Affirmative Defense Provisions During 
Periods of Malfunction 
C. Affirmative Defense Provisions During 
Periods of Startup and Shutdown 
D. Relationship Between SIP Provisions 
and Title V Regulations 
E. Intended Effect of the EPA�s Action on 
the Petition 
VIII. Legal Authority, Process, and Timing for 
SIP Calls 
A. SIP Call Authority Under Section 
110(k)(5) 
1. General Statutory Authority 
2. Substantial Inadequacy of Automatic 
Exemptions 
3. Substantial Inadequacy of Director�s 
Discretion Exemptions 
4. Substantial Inadequacy of Improper 
Enforcement Discretion Provisions 
5. Substantial Inadequacy of Deficient 
Affirmative Defense Provisions 
B. SIP Call Process Under Section 110(k)(5) 
C. SIP Call Timing Under Section 110(k)(5) 
IX. What is the EPA proposing for each of the 
specific SIP provisions identified in the 
Petition? 
A. Overview of the EPA�s Evaluation of 
Specific SIP Provisions 
1. Automatic Exemption Provisions 
2. Director�s Discretion Exemption 
Provisions 
3. State-Only Enforcement Discretion 
Provisions 
4. Adequacy of Affirmative Defense 
Provisions 
5. Affirmative Defense Provisions 
Applicable to a ��Source or Small Group 
of Sources�� 
B. Affected States in EPA Region I 
1. Maine 
2. New Hampshire 
3. Rhode Island 
C. Affected States in EPA Region II 
1. New Jersey 
2. [Reserved] 
D. Affected States in EPA Region III 
1. Delaware 
2. District of Columbia 
3. Virginia 
4. West Virginia 
E. Affected States and Local Jurisdictions 
in EPA Region IV 
1. Alabama 

Federal Register / Vol. 78, No. 36 / Friday, February 22, 2013 / Proposed Rules 12463 

2. Florida 
3. Georgia 
4. Kentucky 
5. Kentucky: Jefferson County 
6. Mississippi 
7. North Carolina 
8. North Carolina: Forsyth County 
9. South Carolina 
10. Tennessee 
11. Tennessee: Knox County 
12. Tennessee: Shelby County 
F. Affected States in EPA Region V 
1. Illinois 
2. Indiana 
3. Michigan 
4. Minnesota 
5. Ohio 
G. Affected States in EPA Region VI 
1. Arkansas 
2. Louisiana 
3. New Mexico 
4. Oklahoma 
H. Affected States in EPA Region VII 
1. Iowa 
2. Kansas 
3. Missouri 
4. Nebraska 
5. Nebraska: Lincoln-Lancaster 
I. Affected States in EPA Region VIII 
1. Colorado 
2. Montana 
3. North Dakota 
4. South Dakota 
5. Wyoming 
J. Affected States and Local Jurisdictions in 
EPA Region IX 
1. Arizona 
2. Arizona: Maricopa County 
3. Arizona: Pima County 
K. Affected States in EPA Region X 
1. Alaska 
2. Idaho 
3. Oregon 
4. Washington 
X. Statutory and Executive Order Reviews 
A. Executive Order 12866: Regulatory 
Planning and Review and Executive 
Order 13563: Improving Regulation and 
Regulatory Review 
B. Paperwork Reduction Act 
C. Regulatory Flexibility Act 
D. Unfunded Mandates Reform Act 
E. Executive Order 13132�Federalism 
F. Executive Order 13175�Consultation 
and Coordination With Indian Tribal 
Governments 
G. Executive Order 13045�Protection of 
Children From Environmental Health 
Risks and Safety Risks 
H. Executive Order 13211�Actions 
Concerning Regulations That 
Significantly Affect Energy Supply, 
Distribution, or Use 
I. National Technology Transfer and 
Advancement Act 
J. Executive Order 12898�Federal Actions 
to Address Environmental Justice in 
Minority Populations and Low-Income 
Populations 
K. Determination Under Section 307(d) 
L. Judicial Review 
XI. Statutory Authority 
E. What is the meaning of key terms 
used in this notice? 
For the purpose of this notice, the 
following definitions apply unless the 
context indicates otherwise: 

The term