The final rule is the latest step in a drawn-out rulemaking process that began with a proposed rule (78 Fed. Reg. 12459) in February 2013. The proposed rule was in response to a petition for rulemaking filed by the Sierra Club in 2011, in which the Sierra Club argued that SSM provisions contained within many SIPs violate CAA provisions that require emission sources to continuously meet emissions limitations. Since the 1970s, many SIPs have contained affirmative defenses, exemptions, variances or other mechanisms that shield a facility from penalties during SSM events. USEPA has long recognized that the practical and technical realities of operating an emission source tend to clash with a requirement to comply with a stringent emission limit 100 percent of the time. This tension between reality and rule is particularly apparent during source startup and shutdown periods where technical or design limits on sources and control technologies sometimes make excess emissions unavoidable and also during periods of malfunction, which are an ever-present threat no matter how well a source may be operated or maintained. Over the past 30 years, USEPA has issued a series of guidance documents on SSM emissions through which USEPA has attempted to reconcile CAA requirements with operational realities. Each of these guidance documents—the most significant of which were issued in 1982, 1983, 1999 and 2001—adjusted and refined USEPA’s position on SSM emissions. In turn, state and local agencies have revised their SSM rules at various times, and many of these SIPs have not been updated as frequently as USEPA’s evolving positions.
In its most recent interpretation, USEPA generally takes the position that startup and shutdown operations constitute “normal” operation. In addition, a source’s emission limits must “continuously” apply, even during malfunctions. Thus, any SIP that contains an automatic exemption, discretionary exemption or affirmative defense provision is inconsistent with CAA requirements, depending on the specific language in each SIP. The final rule explicitly states that a defense will not be available for instances of excess emissions resulting from SSM events. USEPA does allow a state or local agency to issue its own enforcement discretion criteria, but such criteria cannot be binding on the United States or any citizens group. In addition, the state or local agency must retain the authority to enforce CAA requirements. Going forward, excess emissions during SSM events would be considered violations of the CAA, subject to enforcement and both monetary penalties and injunctive relief. During an enforcement action, sources may argue that equitable factors should limit exposure to such penalties or relief.
The 36 jurisdictions involved will have 18 months, until November 22, 2016, to revise their SIPs to include SSM provisions conforming to the current CAA interpretation and submit them to USEPA for approval. USEPA implicitly recognizes in the rulemaking and guidance that many emission limitations are written for steady state operating conditions. USEPA even goes so far as to say that it is now inappropriate for a state or local agency to adopt by reference certain SSM provisions in the New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants (Maximum Achievable Control Technology) rules written by USEPA. Accordingly, USEPA provides guidance to states on ways to revise the emission limits in their SIPs (not just the SSM specific rules) to provide alternative emission limitations or work practice standards, as long as such limits or standards meet other requirements of the CAA, including being practically enforceable. USEPA notes that general duty clauses that require “good air pollution control practices” are inadequate.
USEPA estimates that the rule will not impose costs on industry because the rule change obligations fall upon the regulators. However, regulated entities will be the ones who feel the brunt of the rule change because of increased exposure to enforcement from malfunction events and the need to carefully review permits and emission limits to identify those that need to be adjusted to account for startup and shutdown operations. Eighteen months is not a long period of time given the need to identify problematic limits, devise an acceptable alternative limit and, where necessary, revise a SIP.
The final rule was issued for publication on May 22, 2015, and USEPA claims there is good cause that the rule be effective as of that date. The deadline for each state to submit a SIP revision is November 22, 2016. Any challenges to the final rule must be filed in the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of publication in the Federal Register.
1 A copy of the pre-publication final rule is available at http://www.epa.gov/airquality/urbanair/sipstatus/docs/20150522fr.pdf.
2 These jurisdictions include: Maine, New Hampshire, Rhode Island, New Jersey, Delaware, Virginia, West Virginia, Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Illinois, Indiana, Michigan, Minnesota, Ohio, Arkansas, Louisiana, New Mexico, Oklahoma, Iowa, Kansas, Missouri, Colorado, Montana, North Dakota, South Dakota, Wyoming, Arizona, Alaska, Washington and the District of Columbia which, although not a state, has a SIP.
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Byron F. Taylor
Maureen M. Crough
Sidley Environmental Practice
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