U.S. EPA Region IV Proposes an Alternative SSM Policy for SIPs: Five Things You Need to Know

Below are five key highlights related to the Region IV proposed rule:

1. Second SSM Policy Proposal by an EPA Region. The proposed rule is the second effort by an EPA Region to give states more flexibility in determining how to address emissions during SSM events. On April 29, EPA Region VI issued a proposed action that outlines an alternative policy regarding the permissibility of affirmative defense provisions in SIPs. The Region VI action proposes the withdrawal of the agency’s 2015 determination that the Texas SIP was substantially inadequate because of the included affirmative defense provisions. If finalized, the proposal would reinstate Texas’ affirmative defense provisions applicable to excess emissions during certain upset events and unplanned maintenance, startup or shutdown activities.
   
   
2. The applicability of Sierra Club v. Johnson. Region IV distinguished Sierra Club v. Johnson, which the agency relied on in the 2015 SSM SIP Call Action. Specifically, Region IV concludes that the D.C. Circuit’s prohibition of SSM exemptions was specific to Clean Air Act (CAA) Section 112 compliant standards and does not apply to SIPs and actions governed by CAA Section 110.
   
   
3.  Automatic Exemptions. Under the alternative policy, an automatic exemption during SSM periods “may not necessarily render the SIP inadequate.” EPA Region IV proposes the use of a “holistic” evaluation to determine whether the inclusion of an automatic exemption provision in a SIP is appropriate. This evaluation would be state specific and include an analysis of whether the SIP as a whole contains sufficient provisions to ensure the attainment and maintenance of National Ambient Air Quality Standards.
   
   
4. Director’s Discretion Exemptions. Contrary to the current national policy, Region IV’s policy does not automatically render a SIP inadequate because of the inclusion of a “director’s discretion” exemption. Specifically, the director’s discretion exemption provision would not be unlawful if it established a framework for the applicability of the exemption that was approved into the SIP after going through the public process.
   
   
5. The Policy’s Application to North Carolina SIP. On June 12, 2015, EPA issued a SIP Call to North Carolina based on the state’s inclusion of two director’s discretion exemption provisions in the SIP - 15A Admin. Code 2D .0535(c) and 15A Admin. Code 2D .0535(g). These provisions provide discretion to the North Carolina Division of Air Quality to exempt excess emissions from being considered a violation in certain circumstances. If the alternative policy is adopted, Region IV would propose two actions: first, the withdrawal of the 2015 North Carolina SIP Call; second, the approval of North Carolina’s SIP revision to include an automatic exemption from nitrogen oxide emission standards for large internal combustion engines during scheduled maintenance hours and SSM periods as long as the period does not exceed 36 consecutive hours.
   
   The proposed rule is available here and is open for comment until August 5, 2019.