Going, Going EPA Eliminates Another Source Of Startup, Shutdown And Malfunction Exemptions From Clean Air Act

On June 12, EPA published its final regulatory action under the Clean Air Act (CAA) requiring 36 states to remove provisions from their State Implementation Plans (SIPs) allowing exemptions from emission limitations during startup, shutdown and malfunction (SSM) events. This action also requires 17 states to remove affirmative defenses from the SSM provisions of their SIPs. Affected states must submit their SIP revisions to EPA for approval by Nov. 22, 2016. By removing the long-standing SSM provisions, the revised state provisions may impact the operating burdens of many facilities that have SSM exemptions in their CAA operating permits and may also increase their liability exposure to government and citizen enforcement actions.

As previously reported, EPA first proposed this action (SIP Call) in 2013 as a result of the Sierra Club's June 30, 2011, petition following the environmental organization's successful challenge to EPA's General Provisions regarding SSM exemptions for National Emission Standards for Hazardous Air Pollutants (NESHAPs): Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). EPA supplemented and revised the original proposal in 2014 after the D.C. Circuit Court held that EPA may not create an affirmative defense against civil penalties for toxic air emissions by Portland cement manufacturers, even in the event of an unavoidable malfunction. NRDC v. EPA, 749 F.3d 1055, 1063 (D.C. Cir. 2014). Although the holding in that case only applied to CAA citizen suits, EPA extended this holding to all SIPs rendering those that contain affirmative defenses in their SSM provisions invalid because they could potentially limit the jurisdiction of federal courts to assess civil penalties under the CAA.

The SIP Call also contained EPA's updated position regarding the use of SSM exemptions and affirmative defenses. As explained by EPA in the final action, the agency asserts that the CAA prohibits automatic SSM exemptions and affirmative defenses, but does allow enforcement discretion by air agency personnel exercised on a case-by-case basis. It also allows emissions during SSM events to be regulated using alternative numerical limitations or other technological control or work practice requirements.

With the elimination of automatic SSM exemptions and affirmative defenses, sources may consider permit amendments that establish these alternative numerical limits or work practice requirements in their air permits for periods of startup and...