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EPA Directs 36 States to Revise Startup, Shutdown, and Malfunction Excess Emissions Provisions

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In a February 12, 2013, proposed rule, the U.S. Environmental Protection Agency (EPA) has largely granted a Sierra Club petition that requested EPA to find that 39 state implementation plans (SIPs), including Florida’s, are substantially inadequate under the Clean Air Act in their treatment of excess emissions during startup, shutdown, and malfunction (SSM).  In general, these provisions allow emission in excess of applicable emission limits during SSM events such that they are not considered violations.  EPA’s proposed rule argues that these provisions violate the Clean Air Act by allowing emissions that could cause or contribute to violations of ambient air quality standards and/or by precluding enforcement of applicable standards by EPA or citizens.  Under current EPA policy, the only likely alternatives to the existing provisions include: (1) affirmative defenses to civil penalties for excess emissions during malfunctions (but no affirmative defense during startup and shutdown and no preclusion at all of injunctive relief sought by citizens or EPA); and (2) possible limited relief for narrowly drawn exemptions where technological limitations demonstrate compliance is impossible and modeling shows no exceedance of ambient air quality standards.

Under EPA’s proposed rule, the 36 affected states will have 18 months from EPA’s publication of a final finding of substantial inadequacy to submit SIP revisions correcting the identified deficiencies.  Public comments on EPA’s proposed rule must be submitted no later than 30 days after publication of the proposed rule in the Federal Register, which is expected in the next few weeks.  Additional information regarding EPA’s action on SSM SIP provisions is available here.

For additional information, contact Joseph Brown.