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1 Startup Shutdown & Malfunction EPA’s “SSM SIP CALL” Mack McGuffey Troutman Sanders LLP [email protected] (404) 885-3698
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Startup Shutdown & Malfunction
EPA’s “SSM SIP CALL”
Mack McGuffey
Troutman Sanders LLP
(404) 885-3698
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Why Are SSM Provisions Needed?
• During startup, shutdown, or malfunctions (SSM),
emission limitations designed for normal, steady-state
operations may be unachievable.
– Some control devices cannot be engaged
– Efficient combustion cannot be achieved
– SSM events involve “transient” conditions
– Accurate measurement of emissions during SSM events is
difficult, if not impossible
• Without an SSM provision, these unavoidable emissions
could be Clean Air Act violations.
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State SSM Provisions
• Most have been in State Implementation Plans (SIPs)
since original EPA approval in the 1970s
• Typically not specific to industry/pollutant
• Each state’s SSM provision is a little different
– Some confirm that SSM emissions are not a “violation”
– Some provide an “affirmative defense”
– Some allow state authorities to determine “violations”
– Almost all are qualified or conditioned
… under certain conditions …
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Federal SSM Provisions
• NSPS 40 C.F.R. Part 60 Subpart A:
– Operations during periods of [SSM] shall not constitute
representative conditions for the purpose of a performance test
nor shall emissions in excess of the level of the applicable
emission limit during periods of [SSM] be considered a
violation of the applicable emission limit
• NESHAP 40 C.F.R. Part 63 Subpart A
– [E]mission standards set forth in this part shall apply at all times
except during periods of startup, shutdown, and malfunction
• NESHAP Subpart UUUUU (MATS)
– You must be in compliance with the emission limits and operating
limits in this subpart. These limits apply to you at all times
except during periods of startup and shutdown.
• NESHAP Subpart DDDDD, JJJJJJ (Boiler MACT)
– These standards apply at all times the affected unit is operating,
except during periods of startup and shutdown …
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Federal SSM Provisions
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• In 2002, the Sierra Club sued Georgia Power
alleging ~4000 opacity violations at Plant
Wansley in 5 years (1% operating time).
• Georgia Power submitted factual and expert
testimony that Plant Wansley met Georgia
SSM rule for each excess opacity event.
District Court: granted summary judgment for Sierra Club
because the Plant’s permit used “may allow” instead of “shall
allow,” as in the SSM rule.
Sierra Club v. Georgia Power 443 F.3d 1346 (11th Cir. 2006)
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11th Circuit: held that the Georgia SSM rule
establishes a valid affirmative defense
– “Ultimately, it appears that Sierra Club's real complaint is
not with Georgia Power's permit compliance, but rather
with Georgia's SSM Rule itself. … Sierra Club could
petition the EPA for rulemaking, asking the EPA to
demand that Georgia alter its SIP to conform to the EPA's
SSM policy… For purposes of this particular enforcement
action, however, Georgia's SSM Rule remains the law….”
• During the case, Sierra Club asked EPA for a “SIP Call,”
which the Bush Administration denied. Under the Obama
Administration, Sierra Club tried again …
Sierra Club v. Georgia Power 443 F.3d 1346 (11th Cir. 2006)
EPA’s Final SSM SIP Call • Issued May 22, 2015; SIPs revisions due Nov. 22, 2016
• 36 states have “substantially inadequate” SIPs
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In short, the final SSM SIP Call:
1. Binding: Eliminate or revise certain SSM provisions
identified by EPA as unlawful affirmative defenses or
“emission limitations” that are not “continuous”
2. Guidance: “recommendations” on what EPA believes to
be an appropriate and approvable “alternative emission
limitation” (AEL)
• EPA’s new SSM Policy is a “policy statement” and thus “guidance;” it “does not bind states ...”
EPA’s Final SSM SIP Call
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EPA’s Final SSM SIP Call
• “Good Cop”
– Numeric limitations need not apply at all times;
combinations of numeric and non-numeric standards
can form “continuous” “emission limitations”
• “Bad Cop”
– EPA claims that “general duty” clauses will not suffice
– EPA cites 7 criteria for alternative limitations
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EPA’s Final SSM SIP Call
LEGAL ISSUES:
• Usurping State Authority to Define “Violations”?
• “Other Control Measures” Need Not Be “Continuous”?
• SIP Control Measures Already “Continuous”?
• SIP Call Authority—What is “substantially inadequate”?
• Affirmative Defenses Not Precluded?
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Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008)
• EPA defended its own “exemption + general duty” approach to SSM
under the NESHAP program, which replaced the numeric emission
limitations with a general duty to minimize emissions at all times.
• The court held: “When sections 112 and 302(k) are read together,
then, Congress has required that there must be continuous section
112-compliant standards. The general duty is not a section 112-
compliant standard [which EPA admitted].”
EPA’s Final SSM SIP Call
EPA’s Final SSM SIP Call
NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014)
• Rejected EPA’s “affirmative defense” in its NESHAP for Cement
Plants on the basis that it interferred with the court’s authority to
determine penalties for what EPA admits to be “violations”
• In a footnote, expressly declined to address SIPs in light of Luminant
v EPA, which held that EPA properly approved Texas’ SSM
provision, even though inconsistent with new policies
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EPA’s Final SSM SIP Call
U.S. Magnesium v. EPA, 690 F.3d 1157 (10th Cir. 2012)
• Affirmed EPA’s SSM SIP Call to Utah, but …
• Utah’s SSM provision applied to NSPS and NESHAP
• EPA identified specific NAAQS violations attributable to SSM
• In a footnote, expressly declined to define “substantially inadequate”
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What’s next?
• LITIGATION!
• SIP Revisions (since stay is unlikely)
1. Simply delete the offending provision?
2. Enforcement discretion (“may”)?
3. “Alternative emission limitations”
A. Numeric work practice standards
B. Non-numeric work practice standards
“Narrowly defined source categories”?
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Startup Shutdown & Malfunction
EPA’s “SSM SIP CALL”
Mack McGuffey
Troutman Sanders LLP
(404) 885-3698
