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Court Issues Mandate Vacating Exemptions from Emission Limits During Startup, Shutdown and Malfunction Events

12.01.2009

By Jennifer Thompson, Attorney, Bingham Greenebaum Doll LLP

On October 16, 2009, the D.C. Circuit Court of Appeals issued a mandate vacating the Startup, Shutdown and Malfunction (“SSM”) exemptions contained in the General Provisions of the National Emission Standards for Hazardous Air Pollutants (“NESHAP”), 40 C.F.R. §§ 63.6(f)(1) and 63.6(h)(1). See Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). The vacatur directly affects the NESHAP source categories/subparts that only incorporate 40 C.F.R. §§ 63.6(f)(1) and 63.6(h)(1) by reference and that contain no other source specific exemption for SSM events. The Court’s vacatur does not directly impact those source categories that include a separate exemption or otherwise excuse compliance during SSM events because these other provisions were not challenged.

The mandate comes as no surprise, as the D.C. Circuit Court of Appeals issued its decision to vacate the SSM exemptions on December 19, 2008. Since that time various parties had requested and obtained stays of effectiveness of the Court’s decision.

Since their adoption in 1994, 40 C.F.R. §§ 63.6(f)(1) and 63.6(h)(1) have exempted sources from the NESHAP emission limits during SSM events; however, other provisions have required sources to minimize emissions during such events. Now sources which relied solely on 40 C.F.R. §§ 63.6(f)(1) and 63.6(h)(1) for a SSM exemption must comply with their NESHAP limits during SSM events because the Court found that the NESHAP must apply continuously in accordance with Section 112 of the Clean Air Act.

Adam Kushner, U.S. EPA Director of Civil Enforcement, issued a guidance letter on July 22, 2009 which identifies the specific source categories U.S. EPA has identified as being affected by the Court’s vacatur (see Table 1 of the Kushner Letter). Additionally, Mr. Kushner explains that U.S. EPA will review each source-by-source SSM exemption given the Court’s reasoning in Sierra Club v EPA. Thus, it is likely U.S. EPA will be adopting changes to the SSM exemptions for those sources not immediately affected by the D.C. Circuit Court’s vacatur (see Table 2 of the Kushner Letter for the specific source categories U.S. EPA has identified as not being affected by the vacatur).

U.S. EPA encourages sources that anticipate compliance problems during SSM events to contact U.S. EPA or IDEM to discuss their individual circumstances and the nature and extent of expected excess emissions. Many sources will have to adjust operating practices and/or add emission controls or measures to reduce or eliminate excess emissions during SSM events. In some cases Administrative Orders that include a schedule of compliance may be necessary until corrective measures are completed.

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