EPA continues to change startup, shutdown and malfunction (SSM) conditions throughout the Clean Air Act regulatory scheme.  The changes are a direct response to a number of petitions and court cases brought by environmental groups over the last several years.

As a reminder, sources have been allowed to show that excess emissions during SSM events were unavoidable as long as the demonstrations complied with EPA’s SSM Policy.  Both state and federal rules set up a variety of schemes to allow sources to make a showing that excess emissions were excusable in some way.  However, in light of the challenges and court holdings, including a 2011 petition for rulemaking by Sierra Club and the D.C. Circuit’s April 2014 decision in NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), EPA has now proposed that the manner of showing “excuses” during SSM events be bound within a tight set of principles.[1]  EPA has stated that, “in order for an affirmative defense provision to be consistent with the CAA, it:

  • (i) [h]as to be narrowly drawn to address only those excess emissions that are unavoidable;
  • (ii) cannot interfere with the requirement that the emission limitations apply continuously (i.e., cannot provide relief from injunctive relief); and
  • (iii) cannot interfere with the overarching requirements of the CAA, such as attaining and maintaining the [National Ambient Air Quality Standards].”

As a result, EPA has determined the following provisions are impermissible:

  1. Enforcement discretion provisions.  No provision excusing SSM may have the effect of removing an emission exceedance from the jurisdiction of any administrative or federal court.  Sections 113 and 304 of the CAA allow “any person” to judicially seek to enjoin a source from causing excess emissions.  79 Fed. Reg. 55,929 (Sept. 17, 2014).
  2. Automatic exemptions.  Any provision that exempts sources’ emissions from constituting violations based on a showing that certain conditions existed during excess emissions is not allowed.  Id. at 55, 926.
  3. Director’s Discretion Provisions.  No provision that purports to allow a state or federal air agency to “deem” excess emission events as non-violations is acceptable.  A state or federal regulator cannot remove SSM events from enforcement by citizen groups by simply “deeming” them non-violations.  Any such “director’s discretion” provision violates the principle that sources be continuously in compliance,  Id.

EPA is now taking steps to ensure that state SIPs and federal rules under the CAA comply with these principles.  According to EPA, the court’s decision in NRDC v. EPA applies to enforcement under the CAA generally, not just under one specific program.  To that end, it has proposed or finalized rules requiring changes to state SIPs.  In a February 2013 proposal, EPA seeks to require 36 states to remove affirmative defense provisions in SIPs for startup and shutdown events.  78 Fed. Reg. 12,459 (Feb. 22, 2013).  In its September 17, 2014 supplemental proposal, EPA identifies 17 states (2 in addition to the previous 36) that must modify existing provisions in SIPs for malfunction events.  79 Fed. Reg. 55,919 (Sept. 17, 2014).

EPA is revising SSM provisions in existing new source performance standards (NSPS) and national emission standards for hazardous air pollutants (NESHAP) for various sources.  For example:

  • In July 2014, EPA proposed amendments to the NSPS for the oil and natural gas sector which would result in the total removal of the affirmative defense to civil penalties for violations caused by malfunctions.  79 Fed. Reg. 41,752 (Jul. 17, 2014).
  • On November 19, 2014, EPA completed reconsideration and issued final changes to the NESHAP for power plants (Mercury and Air Toxic Standards or MATS) and Utility NSPS Startup and Shutdown Requirements.  79 Fed. Reg. 68,777 (Nov. 19, 2014).  Under the final rule, EGUs may select between two definitions of startup.  The new alternative definition of startup allows more time before the EGU must comply with numeric limits as long as the unit complies with certain work practice standards, including the use of clean fuels (such as natural gas), engaging particulate matter controls within one hour of adding the primary fuel, and providing EPA with additional information on the specific history and characteristics of the unit (i.e. semiannual reports identifying each instance of startup or shutdown, specifying when clean fuel use begins and ends and primary fuel use starts or ends, and the hourly clean fuel usage, heat input, and electrical output).
  • On December 1, 2014, EPA proposed to delete the affirmative defense provision for emissions of hazardous air pollutants during malfunctions in the NESHAP for new and existing major source boilers and process heaters.[2]  Among other clarifying changes and corrections, EPA proposes to add an alternate definition of startup and an alternate work practice provision requiring the use of clean fuels and pollution control devices.

We can expect additional similar rulemakings from EPA in the near future.  The effect of these proposed and final revisions are source-specific.  Please contact any member of the Schiff Hardin Environmental Group with questions about these regulations and cases.


[1] 78 Fed. Reg. 12,470 (Feb. 22, 2013); 79 Fed. Reg. 55,929 (Sept. 17, 2014).

[2] The proposal is not yet published in the Federal Register.