On the heels of similar proposal last month by EPA Region 6 for Texas , EPA Region 4 has now proposed to withdraw the startup, shutdown, and malfunction (SSM) “SIP Call” for North Carolina. Both of these two actions represent EPA’s latest answer to a vexing question: what should an industrial source of air emissions do when unavoidable and abnormal circumstances cause emissions to exceed a limit designed only for normal operations? EPA’s SIP Call in 2015 reinforced policies intended to make those circumstances into a violation of the Clean Air Act and force states to adopt rules implementing those policies. The recently proposed withdrawals of the SIP Call confirm that EPA, at least in Regions 4 and 6, is planning to allow states more latitude in deciding how to handle SSM events.
Whereas the proposal by Region 6 for Texas was highly Texas-specific, given that state’s unique SSM policies, the proposal by Region 4 makes several statements about state SSM rules that could be relevant for other states, at least in the southeast. First, Region 4 noted that SSM exemptions “may not by inherently inconsistent” with the Clean Air Act. Rather, such exemptions may be lawful if the rest of a state’s air rules are sufficiently protective to maintain compliance with national air quality standards, according to Region 4. This policy, however, requires a state-by-state analysis, including review of individual state implementation plans “as a whole.”
Second, Region 4 distinguished a 2008 D.C. Circuit decision that EPA had previously relied upon in support its 2015 SIP Call. Specifically, Region 4 noted that the D.C. Circuit’s rejection of SSM exemptions in Sierra Club v. EPA was merely a case about standards that EPA must adopt under Section 112 of the Act, not about state implementation plans adopted under Section 110.
Third, Region 4 backed away from EPA’s claim in 2015 that all “emission limitations” must be “continuous” by pointing out that the same term can have different meanings in different sections of an Act—a point of law that has been repeatedly affirmed by the U.S. Supreme Court. As such, even if “emission limitations” under Section 112 must be “continuous,” more flexibility might be appropriate under Section 110, given that the requirements of that section are less prescriptive for states than the requirements of Section 112 are for EPA’s own standards.
Finally, in the proposal, Region 4 indicated that it will consider finding that “director’s discretion” provision “may not necessarily” be substantially inadequate. Unlike EPA’s 2015 SIP Call, which claimed that all such provisions contravene the requirement that any decisions by a Director must be approved by EPA, the proposal by Region 4 suggests that “director’s discretion” provisions could be viewed as simply exercising authority EPA has already approved, if sufficient criteria are in place to ensure the director’s decision is in fact reasonable.
Based on these changes in policy, which Region 4 recognized as contrary to EPA’s prior statements of national policy, Region 4 proposed to withdraw the North Carolina SIP Call (although EPA will have to take separate actions to implement these policies in other states). However, the proposal does not explain what will follow that the withdrawal of the SIP Call for North Carolina. Presumably, the withdrawal would allow the most recently approved SSM rule to remain in place, but that rule was last approved by EPA in 1997, and North Carolina has made some improvements to it since then. Whether Region 4 will address that potential point of confusion as it deals with North Carolina’s SSM rules remains to be seen. The proposal was published in the Federal Register on June 5th, and public comments will be due on August 5th.