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

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On May 22, 2015, the U.S. Environmental Protection Agency (EPA) signed a final rule largely granting 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 due to their treatment of excess emissions during startup, shutdown, and malfunction (SSM). Hopping Green & Sams previously reported on EPA’s proposed action here and here. In general, these provisions allow emissions in excess of otherwise applicable emission limits during SSM events such that they are not considered violations or provide an affirmative defense to civil penalties for excess emissions during these periods. EPA’s final rule concludes that these provisions violate the Clean Air Act by allowing emissions that could cause or contribute to violations of ambient air quality standards, by precluding enforcement of applicable standards by EPA or citizens, and/or by interfering with the jurisdiction of the federal courts to assess liability and impose civil penalties.

The final rule provides 18 months (until November 22, 2016) for 36 affected states, including Florida, to submit corrective SIPs. The affected provisions of Florida’s SIP are found in Rule 62-210.700, Fla. Admin. Code. Any states that fail to meet the deadline, or submit a deficient SIP revision, may be subject to a federal implementation plan under which EPA would directly regulate the state.

Petitions for reconsideration and/or judicial review will be due within 60 days of the final rule’s publication in the Federal Register, which should occur in the next few weeks.

For additional information, contact Joseph Brown.