EPA Requires States To Revise And Tighten Startup, Shutdown, And Malfunction Regulations

Action Item: In response to pressure from environmental groups, EPA has removed Clean Air Act affirmative defenses previously available to the regulated community for startups, shutdowns, or malfunctions (SSM Rule). The result of eliminating the SSM Rule will likely be additional citizen suits and enforcement actions. The regulated community will need to prepare for such litigation as 36 states will be required to revise their state implementation plans to ensure compliance with EPA's Final Rule.

In response to a petition for final rule making filed by the Sierra Club, the Environmental Protection Agency ("EPA") last Friday issued Final Action (RIN 2060-AR68) requiring 36 states to revise their State Implementation Plans ("SIPs") concerning treatment of emissions during periods of startup, shutdown, or malfunction ("SSM"). EPA is issuing an "SIP call" in those states, finding that the SIPs in those states are "substantially inadequate to meet CAA requirements."

We wrote about the Proposed Rule, and all of its technical and legal flaws, in Blank Rome's Energy Trends Watch blog at http://energytrendswatch.com/2013/08/19/epas-proposed-startup-shutdown-and-malfunction-ssm-rule-the-emperors-new-clothes/.

The Final Rule goes even further than the flawed Proposed Rule. EPA has now required that all states completely eliminate the SSM defense to a citizens' suit and/or penalty action. Before, even the EPA had recognized the difficulty of meeting emission limitations 100 percent of the time, particularly in instances of malfunctions beyond the source's control.

EPA attributes this Draconian action to an intervening court case, NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), in which the Court struck down EPA's National Emission Standard for Hazardous Air Pollutants (NESHAP) rule for Portland Cement Plants, a rule that permitted an affirmative defense for emissions violations caused by "unavoidable malfunctions." That case, though, dealt with a NESHAP MACT, not NAAQS, and it did not involve state SIPs at all. In fact, the NRDC decision expressly held that it does not apply to SIPs. See NRDC, 749 F.3d at 1064 n. 2. So EPA's being smitten on that case for this purpose is a romance of convenience.

The...