1
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
____________________________________
)
National
Emission
Standards
for
)
Hazardous
Air
Pollutants
for
Source
)
Categories:
General
Provisions;
and
)
Requirements
of
Control
Technology
)
Docket
ID
No.
OAR­
2002­
0038
Determinations
for
Major
Sources
in
)
Accordance
with
Clean
Air
Act
Sections,
)
Sections
112(
g)
and
112(
j)
)
)
67
Fed.
Reg.
72875
)
(
December
9,
2002)
)
)

COMMENTS
OF
EARTHJUSTICE
I.
COMMENTS
ON
§
112(
j)
PROVISIONS.

A.
Background.

Section
112(
j)
of
the
Clean
Air
Act
provides
that
if
EPA
misses
a
deadline
under
§
112(
e)(
1)
for
promulgating
emission
standards
for
a
category
of
major
sources
of
hazardous
air
pollutants,
each
source
in
such
category
must
submit
a
permit
application
within
eighteen
months
of
the
date
by
which
EPA's
emission
standards
were
due.
42
U.
S.
C.
§
7412(
j)(
2),
(
3).
Submission
of
such
permit
applications
begins
a
process
pursuant
to
which
the
State
in
which
each
sources
operates
establishes
"
case­
by­
case"
emission
standards
"
equivalent
to
the
limitation
that
would
apply
to
such
source
if
an
emission
standard
had
been
promulgated
in
a
timely
manner
under
[
§
112(
d)]."
42
U.
S.
C.
§
7412(
j)(
5).

In
April
of
2002,
EPA
extended
the
§
112(
j)
permit
application
by
two
years.
67
Fed.
Reg.
at
16589­
16593
(
April
5,
2002).
In
attempt
to
support
that
extension,
EPA
argued
that
because
"
the
hammer
provision
in
section
112(
j)
itself
establishes
the
requirement
to
submit
permit
applications
`
beginning
18
months
after'
the
statutory
date
for
promulgation
of
a
standard
 
we
believe
that
the
statute
can
be
reasonably
construed
as
authorizing
us
to
provide
a
period
of
time
after
the
hammer
date
in
which
the
information
necessary
for
a
fully
informative
section
112(
j)
application
can
be
compiled."
Id.
at
16589/
3
(
emphasis
added).
Thus,
EPA
claimed
for
itself
the
authority
to
determine
when
complete
§
112(
j)
permit
applications
must
be
submitted.

Sierra
Club
challenged
EPA's
rule
extension
as
unlawful,
and
also
filed
a
petition
for
reconsideration
with
the
Administrator
under
Clean
Air
Act
§
307(
d)(
7)(
B).
Pursuant
to
a
settlement
agreement
in
the
litigation,
EPA
has
proposed
certain
changes
to
its
2
deadline
extension.
67
Fed.
Reg.
72875,
72878,
72879
(
December
9,
2002).
Specifically,
EPA
has
proposed
new
dates
by
which
complete
§
112(
j)
permit
applications
must
be
submitted.
Id.
at
72881­
72883.
These
dates
represent
a
compromise
between
EPA
and
Sierra
Club
regarding
the
challenged
extension.

B.
Comments.

Earthjustice
supports
the
deadlines
for
complete
§
112(
j)
permit
applications
that
are
set
forth
in
EPA's
proposal
(
67
Fed.
Reg.
at
72881­
72882),
as
a
reasonable
compromise.

EPA
continues
to
insist,
however,
that
it
has
discretion
to
extend
the
§
112(
j)
permit
application
deadline:

In
the
final
rule,
we
observed
that
there
is
another
provision
in
the
statute
which
may
be
reasonably
construed
to
provide
authority
for
us
to
establish
an
incremental
process
for
the
submission
of
section
112(
j)
applications.
The
hammer
provision
in
section
112(
j)(
2)
itself
establishes
the
requirement
to
submit
permit
applications
"
beginning
18
months
after"
the
statutory
date
for
promulgation
of
a
standard.
Reading
this
provision
in
context,
we
believe
that
the
statute
can
be
reasonably
construed
as
authorizing
us
to
provide
a
period
of
time
after
the
hammer
date
in
which
the
information
necessary
for
a
fully
informative
section
112(
j)
application
can
compiled.
We
have
not
changed
our
view
that
this
is
a
reasonable
construction
of
the
statutory
provision
in
question,
and
we
are
reiterating
this
construction
of
the
statute
as
part
of
our
rationale
for
these
proposed
rule
amendments.

67
Fed.
Reg.
at
72883
(
emphasis
in
original).
See
67
Fed.
Reg.
at
16589/
3
(
same).

The
above
statutory
interpretation
was,
and
still
is,
unlawful.
Section
112(
j)(
3)
provides
that
"[
b]
y
the
date
established
by
paragraph
(
2),
the
owner
or
operator
of
a
major
source
subject
to
this
subsection
shall
file
an
application
for
a
permit."
42
U.
S.
C.
§
7412(
j)(
3)
(
emphasis
added).
It
also
provides
that
unless
the
owner
or
operator
either
has
a
§
112(
j)
permit,
or
"
has
submitted
a
timely
and
complete
application
for
a
permit,"
its
continued
operation
is
unlawful.
Id.
(
emphasis
added).
Thus,
§
112(
j)(
3)
makes
absolutely
clear
that
"
complete"
applications
must
be
submitted
"
by
the
date
established
by
paragraph
(
2)."
42
U.
S.
C.
§
7412(
j)(
3).
The
only
date
established
by
§
112(
j)(
2)
is
"
18
months
after"
the
deadline
for
§
112(
d)
standards
set
forth
in
§
112(
e)
 
i.
e.,
May
15,
2002.
42
U.
S.
C.
§
7412(
e)(
1)(
E).
Therefore,
read
together
 
as
they
must
be
 
§
§
112(
j)(
2)
and
(
3)
unambiguously
require
"
complete"
applications
to
be
submitted
eighteen
months
after
EPA's
regulations
were
due
under
§
112(
e)(
1)(
E).
42
U.
S.
C.
§
7412(
j)(
2),
(
3).
See
Davis
v.
Michigan
Dept.
of
Treasury,
489
U.
S.
803,
809
(
1989)
("
It
is
a
fundamental
canon
of
statutory
construction
that
the
words
of
a
statute
must
be
read
in
their
context
and
with
a
view
to
their
place
in
the
overall
statutory
scheme").
3
The
language
on
which
EPA
seeks
to
rely
lends
no
support
to
the
agency's
argument
that
it
can
extend
the
deadline
for
permit
applications.
Section
112(
j)(
2)
uses
the
word
"
beginning"
not
to
suggest
that
the
permit
application
deadline
is
somehow
"
incremental"
 
an
odd
concept
at
best
 
but
merely
to
indicate
that
submission
of
permit
applications
is
the
first
of
the
entire
sequence
of
§
112(
j)
requirements
with
which
owners
and
operators
must
comply.
42
U.
S.
C.
§
7412(
j)(
2)
(
referring
to
requirements
under
§
§
112(
j)(
3),
(
5),
and
(
6)).

Moreover,
by
reading
§
112(
j)(
2)
as
allowing
permit
applications
to
be
submitted
in
"
increment[
s],"
and
over
any
"
period
of
time"
that
EPA
chooses,
the
agency
nullifies
§
112(
j)(
3)'
s
requirement
for
timely
and
complete
permit
applications
and
defeats
the
purpose
of
§
112(
j)
completely.
The
hammer
can
hardly
be
"
a
backstop
to
[
EPA's]
failure
to
issue
MACT
standards"
(
67
Fed.
Reg.
at
16589/
2),
if
the
agency
itself
can
arrest
it
indefinitely
in
midair.
See
Pennsylvania
Dep't
of
Public
Welfare
v.
Davenport,
495
U.
S.
552,
562
(
1990)
("
Our
cases
express
a
deep
reluctance
to
interpret
a
statutory
provision
so
as
to
render
superfluous
other
provisions
in
the
same
enactment").
See
Original
Honey
Baked
Ham
v.
Glickman,
172
F.
3d
885,
890
(
D.
C.
Cir.
1999)
(
rejecting
statutory
interpretation
that
"
bears
no
logical
relationship"
to
the
statutory
goal).
See
also
AKA
v.
Washington
Hosp.
Center,
156
F.
3d
1284,
1301
(
D.
C.
Cir.
1998)
(
rejecting
paradoxical
reading
of
statute).

In
sum,
the
statutory
interpretation
that
EPA
advances
is
contrary
to
Congress's
"
unambiguously
expressed
intent."
See
Chevron
U.
S.
A.,
Inc.
v.
Natural
Resources
Defense
Council,
467
U.
S.
837,
842­
843
(
1984)
("
if
the
intent
of
Congress
is
clear
that
is
the
end
of
the
matter;
for
the
court,
as
well
as
the
agency
must
give
effect
to
the
unambiguously
expressed
intent
of
Congress.").
Alternatively,
even
if
§
112(
j)
were
somehow
ambiguous,
EPA's
interpretation
"
diverges
from
any
realistic
meaning"
of
the
statute
and
is
therefore
unreasonable
under
Chevron
Step
Two.
NRDC
v.
Daley,
209
F.
3d
747,
755
(
D.
C.
Cir.
2000).
Thus,
by
extending
that
deadline
at
all,
EPA
violates
the
Clean
Air
Act.
See
Securities
and
Exchange
Comm'n
v.
Sloan,
436
U.
S.
103,
111(
1978)
(
SEC
cannot
summarily
suspend
trading
of
a
security
for
longer
than
ten
days
when
statute
expressly
limits
such
suspensions
to
ten
days);
NRDC
v.
Reilly,
976
F.
2d
36,
41
(
D.
C.
Cir.
1996)
(
where
statute
allowed
only
one
three­
month
stay
of
emission
standards,
EPA
had
no
authority
to
grant
additional
stays).

Although
Earthjustice
supports
the
proposed
deadlines
set
forth
in
Tables
1
and
2
(
67
Fed.
Reg.
at
72882),
EPA
should
be
aware
that
if
its
final
rule
includes
any
dates
other
than
those
it
proposed,
that
rule
 
which
is
legally
flawed
for
the
reasons
stated
above
 
is
likely
to
be
challenged
in
court.

II.
COMMENTS
ON
STARTUP,
SHUTDOWN
AND
MALFUNCTION
PROVISIONS.

A.
Compliance
with
an
SSM
Plan
Does
Not
Equate
to
Compliance
with
a
MACT
Standard
4
Title
III
of
the
Clean
Air
Act
does
not
provide
facilities
that
are
subject
to
the
CAA's
air
toxics
requirements
with
any
kind
of
exemption
during
periods
of
startup,
shutdown,
or
malfunction
("
SSM").
EPA
offers
no
reason
to
read
such
an
exception
into
Title
III.
To
the
extent
that
there
is
case
law
carving
out
an
exception
from
Clean
Air
Act
compliance
obligations
during
startup,
shutdown,
and
malfunctions,
that
case
law
construes
other
provisions
of
the
Clean
Air
Act,
not
Title
III.
Thus,
provisions
in
these
regulations
that
exempt
sources
from
compliance
with
MACT
standards
during
SSM
events
violate
the
Clean
Air
Act
and
must
be
eliminated.

If
EPA
has
any
legal
authority
to
exempt
sources
from
compliance
with
MACT
standards,
which
we
believe
it
does
not,
that
authority
only
extends
to
excusing
unavoidable
violations
of
emission
limitations.
See
Marathon
Oil
v.
Environmental
Protection
Agency,
564
F.
2d
1253
(
1977).
The
MACT
regulations
promulgated
by
EPA
on
April
5,
2002
("
the
2002
MACT
regulations")
prevent
EPA
from
ensuring
that
a
facility
complies
with
the
MACT
standard.
Specifically,
they
establish
a
scheme
whereby
so
long
as
the
facility
complies
with
its
SSM
plan,
it
is
deemed
to
be
in
compliance
with
the
law.
See
40
C.
F.
R.
§
63.6
(
stating
that
a
facility
is
operating
in
accordance
with
good
air
pollution
control
practices
whenever
it
"
meet[
s]
the
emission
standard
or
compl[
ies]
with
the
startup,
shutdown,
and
malfunction
plan;"
and
stating
that
the
Administrator's
authority
is
limited
to
investigating
whether
"
such
operation
and
maintenance
procedures
are
being
used.").

The
problem
with
shielding
a
facility
from
liability
so
long
as
it
complies
with
its
SSM
plan
is
that
the
facility's
SSM
plan
goes
into
effect
without
approval
by
EPA
or
a
state
permitting
authority.
The
2002
MACT
regulations
allow
a
facility
to
make
any
change
to
its
SSM
plan
that
it
believes
necessary,
including
changing
what
counts
as
"
startup,"
"
shutdown,"
or
"
malfunction"
without
government
approval.
Unfortunately,
the
SSM
plan
that
a
facility
prepares
for
itself
may
not
assure
compliance
with
the
applicable
MACT
standard.
Though
a
permitting
authority
can
require
a
facility
to
revise
its
SSM
plan
when
it
determines
that
the
plan
is
inadequate,
the
facility
remains
shielded
under
the
terms
of
the
defective
SSM
plan
until
a
revised
SSM
plan
goes
into
effect.
Moreover,
there
is
no
guarantee
that
the
revised
plan
will
be
adequate
to
assure
the
facility's
compliance
with
the
MACT
standard,
since
subsequent
revisions
also
go
into
effect
without
government
approval.

The
2002
MACT
regulations
violate
the
Clean
Air
Act
because
they
do
not
ensure
that
regulated
facilities
will
be
required
to
achieve
the
maximum
degree
of
reduction
in
emissions
of
hazardous
air
pollutants
on
a
continuous
basis.
Under
CAA
§
112(
d)(
1),
"
The
Administrator
shall
promulgate
regulations
establishing
emission
standards
for
each
category
or
subcategory
of
major
sources
and
area
sources
of
hazardous
air
pollutants
listed
for
regulation
.
.
.."
Such
emission
standards
"
shall
require
the
maximum
degree
of
reduction
in
emissions
of
the
hazardous
air
pollutants
.
.
.
that
the
Administrator,
taking
into
consideration
the
cost
of
achieving
such
emission
reduction,
and
any
non­
air
quality
health
and
environmental
impacts
and
energy
requirements,
determines
is
achievable
for
new
or
existing
sources
in
the
category
or
subcategory
to
which
such
emission
standard
applies,
through
application
of
measures,
processes,
methods,
systems,
or
techniques
.
.
5
.."
CAA
§
112(
d)(
2).
An
emission
standard
under
the
Clean
Air
Act
"
limits
the
quantity,
rate,
or
concentration
of
emissions
of
air
pollutants
on
a
continuous
basis,
including
any
requirement
relating
to
the
operation
or
maintenance
of
a
source
to
assure
continuous
emission
reduction,
and
any
design,
equipment,
work
practice
or
operational
standard
promulgated
under
[
the
Clean
Air
Act."
CAA
§
302(
k).
The
2002
MACT
regulations
do
not
establish
emission
standards
that
limit
facility
emissions
"
on
a
continuous
basis"
to
emission
levels
that
assure
"
the
maximum
degree
of
reduction
in
emissions
.
.
.
achievable
for
new
and
existing
sources
in
the
category
or
subcategory
to
which
the
emission
standard
applies."
Instead,
the
SSM
provisions
in
the
2002
MACT
regulations
create
a
compliance
gap
in
which
EPA
and
states
cannot
enforce
a
MACT
standard
even
when
it
is
clear
that
a
facility's
violation
does
not
qualify
as
unavoidable
due
to
startup,
shutdown,
or
malfunction
conditions.

The
2002
MACT
regulations
also
violate
CAA
§
112(
h),
which
provides
that
".
.
.
[
i]
n
the
event
the
Administrator
promulgates
a
design
or
equipment
standard
under
this
subsection,
the
Administrator
shall
include
as
part
of
such
standard
such
requirements
as
will
assure
the
proper
operation
and
maintenance
of
any
such
element
of
design
or
equipment."
In
violation
of
this
statutory
mandate,
the
2002
MACT
regulations
do
not
require
a
facility
to
properly
operate
and
maintain
equipment
at
all
times.
Rather,
a
facility
is
shielded
from
enforcement
so
long
as
it
complies
with
its
SSM
plan,
even
when
it
is
clear
that
the
SSM
plan
prepared
by
the
facility
does
not
establish
appropriate
operation
and
maintenance
requirements.

If
EPA
persists
in
including
an
SSM
exemption
in
the
General
MACT
Provisions,
Earthjustice
agrees
that
at
a
minimum
EPA
must
revise
the
language
of
40
CFR
63.6(
e)(
1)(
i)
to
clarify
that
a
source's
compliance
with
its
SSM
plan
does
not
automatically
satisfy
the
source's
general
duty
to
minimize
emissions
during
periods
of
startup,
shutdown,
or
malfunction.
This
revision
is
necessary
to
ensure
that
sources
cannot
evade
accountability
for
avoidable
MACT
violations
by
relying
on
an
inadequate
or
improperly
developed
SSM
plan.

B.
Submission
of
SSM
Plans
and
Plan
Revisions
to
the
Permitting
Authority
Earthjustice
supports
EPA's
proposal
to
require
sources
to
submit
their
initial
SSM
plans
and
plan
revisions
to
the
permitting
authority
so
that
they
will
be
available
to
the
public
as
required
by
CAA
§
114(
c)
and
40
CFR
§
70.4(
b)(
3)(
viii).
Most
states
require
members
of
the
public
to
file
a
Freedom
of
Information
("
FOI")
request
to
obtain
a
document
such
as
an
SSM
plan.
State
FOI
laws
vary
tremendously
and
may
not
allow
the
public
to
gain
access
to
documents
that
are
kept
at
a
source
as
required
by
the
state.
Even
where
state
FOI
laws
do
include
such
provisions,
it
is
much
more
difficult
and
timeconsuming
for
a
member
of
the
public
to
obtain
a
document
if
it
is
held
by
the
source
instead
of
by
a
state
agency.
Thus,
the
MACT
regulations
must
require
sources
to
submit
their
SSM
plans
and
plan
revisions
to
ensure
that
the
public
will
have
access
to
these
documents.
Earthjustice
strongly
supports
EPA's
decision
to
allow
sources
to
submit
6
these
documents
electronically
and
encourages
EPA
to
consider
requiring
electronic
submission
of
these
documents.

C.
Duty
to
Require
a
Source
to
Revise
a
Deficient
SSM
Plan
Earthjustice
supports
the
proposed
change
to
40
CFR
63.6(
e)(
3)(
vii)
to
require
EPA
or
the
permitting
authority
direct
a
source
to
revise
its
SSM
plan
if
deficiencies
are
identified
in
the
plan.
If
a
source
is
operating
pursuant
to
a
deficient
plan,
it
is
much
more
difficult
for
members
of
the
public
and
government
regulators
to
identify
whether
the
source
is
violating
MACT
requirements
because
a
source
is
not
required
to
promptly
report
an
exceedance
of
an
emission
limit
if
that
exceedance
occurs
under
circumstances
that
are
covered
by
the
source's
SSM
plan.
Thus,
any
inadequacies
in
SSM
plans
must
be
resolved
as
quickly
as
possible.

D.
Semiannual
Reporting
of
Malfunction
and
Startup/
Shutdown
Events
Earthjustice
agrees
with
EPA
that
it
is
important
for
sources
to
be
required
to
report
the
number,
duration,
and
type
of
malfunctions
which
occurred
during
the
prior
reporting
period
so
that
the
permitting
authority
can
assess
whether
an
SSM
plan
must
be
revised
to
address
a
type
of
malfunction
that
is
not
addressed
by
the
source's
plan.
See
67
Fed.
Reg.
at
72881.
The
permitting
authority
also
needs
this
information
so
that
it
can
monitor
whether
events
classified
by
the
source
as
"
malfunctions"
actually
occur
on
a
routine
basis.
If
so,
then
these
events
do
not
qualify
as
malfunctions
and
instead
constitute
violations
of
the
MACT
standard.
As
EPA
notes
in
the
preamble
accompanying
this
rulemaking,
EPA's
regulations
at
40
C.
F.
R.
63.2
define
"
malfunction"
as
"
any
sudden,
infrequent,
and
not
reasonably
preventable
failure
of
air
pollution
control
and
monitoring
equipment,
process
equipment,
or
a
process
to
operate
in
a
normal
or
usual
manner."
See
id.
The
summary
of
malfunctions
provided
in
the
source's
semiannual
report
will
alert
the
permitting
authority
when
a
source
has
improperly
defined
routine
events
as
malfunctions.
Without
a
requirement
that
sources
submit
a
summary
of
malfunction
events
to
the
permitting
authority,
it
is
unlikely
that
such
an
abuse
of
the
SSM
provisions
would
come
to
the
attention
of
the
permitting
authority.

Earthjustice
opposes
EPA's
decision
to
eliminate
the
requirement
that
sources
report
the
number
and
duration
of
startup
and
shutdown
events
as
part
of
their
semiannual
reports.
Just
as
a
source
must
revise
its
SSM
plan
if
it
improperly
defines
a
certain
type
of
event
as
a
"
malfunction,"
a
source
must
also
revise
its
SSM
plan
if
it
improperly
classifies
an
event
as
"
startup"
or
"
shutdown."
40
CFR
63.6(
e)(
3)(
vii)(
D).
As
with
malfunctions,
the
definition
of
what
constitutes
startup
or
shutdown
varies
depending
upon
the
type
of
source
and
upon
the
viewpoint
of
the
facility
operator.
Thus,
as
with
malfunctions,
it
is
the
permitting
authority's
responsibility
to
ensure
that
a
source
does
not
include
an
overly
broad
definition
of
"
startup"
and
"
shutdown"
in
its
SSM
plan,
thereby
circumventing
compliance
with
the
MACT
standard.
EPA's
only
explanation
for
why
it
is
necessary
for
sources
to
submit
semiannual
reports
of
malfunctions
but
not
startup
and
shutdown
events
is
that
for
"
some
industries"
startup
and
shutdown
events
are
"
numerous
and
routine."
67
Fed.
Reg.
72881.
Thus,
EPA
claims
that
so
long
as
the
7
source
complies
with
its
SSM
plan,
there
appears
to
be
no
utility
in
requiring
semiannual
summary
reports.
This
distinction
is
irrational
and
arbitrary
because
the
primary
purpose
of
the
semiannual
summary
reports
is
to
allow
the
permitting
authority
to
determine
whether
a
source's
SSM
plan
is
adequate.
See
67
Fed.
Reg.
72881.
If
a
source's
SSM
plan
improperly
defines
"
startup"
or
"
shutdown,"
the
source's
compliance
with
the
SSM
plan
will
obviously
be
insufficient
to
ensure
the
source's
compliance
with
the
MACT
standard.
As
with
malfunctions,
a
semiannual
summary
of
events
classified
by
the
source
as
startup
and
shutdown
would
help
the
permitting
authority
determine
whether
a
source
is
improperly
applying
the
SSM
provisions.
EPA
must
retain
the
rule
requiring
sources
to
submit
a
summary
of
both
malfunctions
and
startup/
shutdown
events
as
part
of
their
semiannual
reports.
