On June 12, EPA published its final SSM SIP Call recalling EPA-approved state air rules governing emissions associated with startup, shutdown and malfunction events at regulated facilities in 36 states.  The list of affected states is posted on EPA’s website here.  Some of these state rules have been approved and on the books for decades, while others were approved by EPA just within the last several years.  EPA is giving the affected states until November 22, 2016 to revise their SIPs and submit any new provisions to EPA for review and approval.

In this action, EPA is also revising its policy on startup, shutdown, and malfunction provisions more generally, and the rule contains guidance for the states on the development of new SSM provisions.

The policy outlined in the final SIP Call would require states to revise their SIPs such that all excess emissions from startup, shutdown and/or malfunction events would be deemed “violations” of the Clean Air Act, even those emissions that are unavoidable despite best operating practices and good air pollution control practices for minimizing emissions.  EPA claims that provisions allowing automatic exemptions, conditional exemptions, affirmative defenses and, in some cases, state enforcement discretion provisions are now illegal under the Clean Air Act.

EPA bases its final rule primarily on two legal theories.  First, EPA asserts that all emission limitations contained in state implementation plans must  be “continuous” based on the definition of “emission limitation” under Section 302(k) of the Act and exemptions, affirmative defenses, and in some cases, enforcement discretion provisions prevent otherwise applicable emission limitations from being continuous by creating a gap in which no limit applies.  Second, EPA asserts that affirmative defense provisions and some enforcement discretion provisions violate Sections 113 and 304 of the act by interfering with the jurisdiction of the courts to decide the appropriate penalty for violations of the Act or otherwise precluding judicial enforcement.

In order to issue a SIP Call under the Act, EPA must find that a SIP is “substantially inadequate.”  In this case, EPA has concluded in the final rule that the SIPs at issue are “substantially inadequate” because they do not conform to EPA’s current interpretation of the Act.  EPA has not attempted to demonstrate that emissions associated with startup, shutdown, or malfunction actually interfere with National Ambient Air Quality Standards (NAAQS) or other air quality requirements, and the Agency claims it is not required to make such a showing in order to issue a SIP Call.

For purposes of developing alternative state regulatory provisions, EPA has developed seven criteria to provide “guidance” for states as they develop new SIP provisions.  The criteria are very prescriptive:

  • Alternate limits must apply only to specific, narrowly defined source categories
  • Alternate limits are appropriate only when use of a control technology for that category is infeasible
  • Frequency and duration of SSM must be minimized
  • State must analyze the worst-case emission scenario
  • The facility must take all possible steps to minimize the impact
  • The facility must use good air pollution control practices
  • The facility must document SSM events/ emissions and compliance using proper logs

This rule will test the extent of EPA’s authority relative to the states to define SIP requirements under the Clean Air Act and the scope of EPA’s authority to issue a SIP call.  Petitions for judicial review will be due by August 11, 2015.  Unless the states are able to obtain a stay and/or expedited consideration, revised SIPs may be due to EPA before any judicial ruling can be issued on the legality of EPA’s SIP Call.

To read the final rule, click here.