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EPA Considering Sierra Club Petition to Remove Upset and Startup, Shutdown, Malfunction Emissions Exemptions from State Implementation Plans


EPA is considering a petition filed by Sierra Club seeking a determination by the agency that 39 State Implementation Plans (SIPs) are insufficient because they include provisions exempting certain emissions during “upset” or Startup, Shutdown, and Malfunction (SSM) events. Sierra Club’s petition claims that SSM exemptions contained in many SIPs – including those in Kentucky and Indiana - are inconsistent with the Clean Air Act. Specifically, Sierra Club claims that because such SSM provisions may allow sources to operate during upset or SSM events with little or no pollution controls, such provisions threaten a state’s ability to obtain compliance with the National Ambient Air Quality Standards (NAAQS), and are therefore deficient under the Act. Although the petition was initially filed in June 2011, EPA entered into a consent decree with Sierra Club allowing the agency to make a decision granting or denying the petition by August 31, 2012. EPA recently indicated that it was still evaluating the petition, but that it would soon implement a rulemaking either granting or denying it.

EPA guidance documents cited by Sierra Club in its petition take the position that SSM and upset emissions must be counted for compliance purposes under various Clean Air Act programs. Many SIPs, however, contain exemptions or affirmative defenses that allow sources to exclude such emissions in certain circumstances. For example, both the Kentucky and Indiana SIPs contain provisions stating that excess emissions during SSM or upset periods are not violations if the source operator can demonstrate that the excess emissions were minimized as soon as possible and did not result from negligence or poor maintenance of equipment (among other factors). Sierra Club claims that such provisions are inconsistent with EPA guidance, and seeks to require state plans to conform to this guidance.

Because Sierra Club’s petition asks EPA to find that the SIPs are inadequate to attain or maintain the NAAQS or otherwise comply with the Clean Air Act, if it EPA grants the petition, it will likely issue what is known as a “SIP Call” – a formal determination that a state’s SIP is inadequate. When EPA issues a SIP Call, the affected state is required it to make the changes to its SIP requested by EPA. If the state fails to revise its SIP in response to the SIP Call, EPA may then proceed to issue its own regulations for the state, implementing what is known as a Federal Implementation Plan (FIP). EPA’s decision to issue a SIP Call or FIP on this issue would be subject to challenge by industry in federal court.

To view a complete PDF of the Second Quarter 2012 issue of the Air Quality Letter, click HERE.

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