Startup Shutdown & Malfunction EPA s SSM SIP CALL Mack McGuffey Troutman Sanders LLP mack.mcguffey@troutmansanders.com (404) 885-3698 1
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. 2
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 3
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 4
Federal SSM Provisions 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 5
Sierra Club v. Georgia Power 443 F.3d 1346 (11th Cir. 2006) 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. 6
Sierra Club v. Georgia Power 443 F.3d 1346 (11th Cir. 2006) 11 th 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 7
EPA s Final SSM SIP Call Issued May 22, 2015; SIPs revisions due Nov. 22, 2016 36 states have substantially inadequate SIPs 8
EPA s Final SSM SIP Call 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... 9
Good Cop EPA s Final SSM SIP Call 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 10
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? 11
EPA s Final SSM SIP Call 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 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 13
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 14
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? 15
Startup Shutdown & Malfunction EPA s SSM SIP CALL Mack McGuffey Troutman Sanders LLP mack.mcguffey@troutmansanders.com (404) 885-3698 16