On May 22, 2015, the U.S. Environmental Protection Agency (EPA) finalized a rule requiring 36 states to revise their regulations governing emissions from sources during startup, shutdown and malfunction (SSM) periods, thus issuing a “SIP call” for each of those 36 states.  EPA’s 554-page notice was issued in a final action triggered by litigation brought by the Sierra Club and filed with the EPA Administrator on June 30, 2011.

EPA states in the final action that rules in the 36 states do not meet appropriate Clean Air Act standards for addressing SSM events.  This EPA rulemaking marks a significant policy shift on SSM issues due in part, according to EPA, to recent court decisions.  This action concerns SSM events that cause an exceedance of standards developed by states for emission sources and control equipment to attain or maintain the National Ambient Air Quality Standards.  According to EPA, air pollution emitted during SSM periods – which is currently exempted from such standards or subject to defenses under SSM provisions in many states — may adversely affect the health of people living nearby and downwind.

In the rulemaking Preamble, EPA reiterates recent shifts in its longstanding SSM policy with respect to excess emissions during SSM periods.  First, EPA rescinds its prior interpretation that, in some cases, appropriately drafted affirmative defense provisions could apply to malfunctions and excess emissions due to startup and shutdown.  Second, EPA is directing states away from allowing automatic exemptions and director’s discretion exemptions for emissions during SSM events and instead towards establishing alternative numerical limits or other control requirements or work practice standards during SSM events.  As we’ve discussed in our previous blog post, EPA does allow SIPs to include criteria for the use of enforcement discretion by state air agency personnel. All states subject to the SSM SIP Call have up to 18 months from the issuance of the final action to submit a SIP revision correcting the identified SSM deficiencies in their SIPS.  Accordingly, each state must respond to the SSM SIP Call by submitting a revised SIP by November 22, 2016.  If a state fails to meet its SIP submission deadline, EPA’s finding of failure or disapproval would trigger EPA’s obligation to impose a federal implementation plan and can trigger 18 and 24-month sanctions clocks under the CAA.  Two sanctions that EPA can apply are the 2-to-1 emission offset requirement for all new and modified major sources subject to the nonattainment New Source Review (NSR) program and restrictions on highway funding.  Mandatory sanctions only apply in nonattainment areas subject to the deficient SIP and for the pollutants the specific SIP element addresses.

Please contact any member of the Schiff Hardin Environmental Group with questions or comments about EPA’s SSM SIP Call.