Startup, Shutdown and Malfunction – The Saga Continues

Posted on June 19, 2015 by Carolyn Brown

On June 12, 2015, EPA’s final rule calling for 35 states and the District of Columbia to revise their regulations on excess emissions during startup, shutdown and malfunction was published.  This rulemaking saga dates back to a June 30, 2011 petition filed by the Sierra Club.  The vast majority of these regulations have been part of State Implementation Plans (SIPs) since the 1970s or early 1980s.  As EPA sets out in the rule, the question of how to deal with emissions during startup, shutdown and malfunction (SSM) has also been the subject of guidance issued in 1982, 1983, 1999, 2001, and now 2015.  This is a tough issue.

EPA  found that a majority of the states have regulations that impermissibly allow a source to assert affirmative defenses to avoid a determination that excess emissions due to SSM events are violations of the Clean Air Act.  Similarly, EPA also concluded that regulations providing discretion to the state agency to determine whether excess emissions are violations are improper.  Because such provisions deprive EPA or citizens of the ability to pursue enforcement action, EPA concludes the provisions are impermissible.  The preamble also points out that broad SSM exclusions under state law would effectively allow state agencies to usurp the authority given to the federal courts by Congress to enforce SIPs and determine penalties.  In response to concerns voiced by the regulated community, EPA emphasizes that sources can assert any common law or statutory defenses they believe are supported by the circumstances when they get to court. 

With respect to startup and shutdown provisions, the rule reiterates that different emissions limitations can apply to particular modes of operation and the preamble discusses the use of work practice standards rather than numerical emission limitations.  EPA recommends seven criteria as appropriate considerations for States as they consider SIP revisions to address startup and shutdown provisions in response to the SIP Call.  The criteria seem designed to encourage a series of source category-specific rules to replace regulatory provisions that apply to all types of emission sources.  However, EPA also emphasized that each state has discretion to determine the best means by which to make a revision so long as the revisions are consistent with the Clean Air Act.  It remains to be seen how states will choose to respond and the extent of administrative burden this process will impose on agency staff.   

Affected states have until November 22, 2016 to respond to the SIP Call.  Until EPA takes final action on the SIP submittals, the existing SIP provisions remain in effect.  SIP calls were issued for Maine, Rhode Island, New Jersey, Delaware, District of Columbia, Virginia, West Virginia, Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Illinois, Indiana, Michigan, Minnesota, Ohio, Arkansas, Louisiana, New Mexico, Oklahoma, Texas, Iowa, Kansas, Missouri, Colorado, Montana, North Dakota, South Dakota, Arizona, California, Alaska, and Washington.