EPA Proposes SIP Call in 36 States, Including Kentucky and Indiana, Regarding Startup, Shutdown and Malfunction
In a number of EPA-approved State Implementation Plans (SIPs), including the SIPs for Kentucky and Indiana, state permitting authorities have provided various forms of exemptions for excess emissions that occur during periods of startup, shutdown and malfunction (SSM). In the Kentucky SIP, the KDAQ SSM provision is found at 401 KAR 50:055, and provides that the KDAQ Director may determine that a source should be relieved from compliance with emission standards during a period of planned or unplanned shutdowns, malfunctions and ensuing startups if certain conditions have been met. For Kentucky sources located in Jefferson County, the Kentucky SIP contains the 1996 version of Louisville Metro Air Pollution Control District (LMAPCD) Regulation 1.07, which provides that temporary excess emissions due to startup, shutdown, malfunction or emergency are considered violations unless “based upon a showing by the owner or operator of the source and an affirmative determination by the District, the applicable requirements of this regulation are satisfied.” (The LMAPCD removed this language and made other revisions to Regulation 1.07 in 2005. The revised regulation was submitted to EPA in March, 2011; however, EPA has not yet approved the revised regulation as part of the Kentucky SIP. EPA considered only the 1996 regulation in this proposed action.) In the Indiana SIP, 326 IAC 1-6-4(a) provides that excess emissions during malfunction periods are not considered a violation if the source demonstrates compliance with a number of conditions. (The Indiana provision is not applicable to Title V sources or sources holding Federally Enforceable State Operating Permits.)
In June 2011, the Sierra Club petitioned EPA requesting elimination of such exemptions in the SIPs of 39 states. Sierra Club also petitioned EPA to prohibit affirmative defenses in SIPs and to discontinue reliance on interpretive letters from states intended to clarify any potential ambiguity in a SIP submission. In a notice appearing in the February 22, 2013 Federal Register, EPA proposed to grant the petitions regarding 36 states, including Kentucky and Indiana, and to find that the SIPs of those 36 states are inadequate to meet the requirements of the Clean Air Act (SIP call). EPA further proposes to deny both the Sierra Club request to prohibit affirmative defenses in SIPs and the request that EPA discontinue reliance on interpretive letters from states for clarification of any SIP submission ambiguity.
If the SIP call becomes final, EPA has proposed to give states 18 months from promulgation of the final inadequacy finding for response. EPA proposes to allow an affirmative defense in the SIP for excess emissions that occur due to unplanned events such as malfunctions; however, EPA plans to rescind its prior interpretation of the Clean Air Act that would allow an affirmative defense for excess emissions during planned periods of start-up or shutdown. However, EPA did state that: “The Clean Air Act would allow special emissions limitations or other control measures or control techniques that are designed to minimize excess emissions during start-up and shutdown.” EPA provided proposed guidance for promulgation of such limits, control measures or control techniques according to seven specific criteria that were enumerated in 1999 EPA startup, shutdown, and malfunction guidance memorandum.
With respect to malfunctions, EPA proposed that an affirmative defense should be limited to those malfunctions that are sudden, unavoidable and unpredictable. EPA also stated that an affirmative defense must provide that the defendant has the burden of proof to demonstrate all of the elements of the defense and that the demonstration has to occur in a judicial or administrative proceeding where the merits of the affirmative defense are independently and objectively evaluated. EPA recommended specific criteria for such an affirmative defense and also provided recommended regulatory language, currently used by EPA for affirmative defenses to malfunctions at facilities subject to National Emission Standards for Hazardous Air Pollutants (NESHAPs) under Section 112 of the Clean Air Act. With regard to malfunctions that occur during planned startup and shutdown periods or startup and shutdowns that occur as the result of or part of a malfunction, EPA stated that it interprets the Clean Air Act to allow narrowly drawn affirmative defense provisions in such circumstances. EPA stated its belief that the inquiry for such events should be case specific and dependent on the facts and circumstances of each event. Finally, EPA reiterated that an affirmative defense provision in a SIP cannot extend to direct final regulations, such as New Source Performance Standards or NESHAPs, adopted or incorporated by reference into a SIP. EPA stated that any affirmative defense warranted for malfunctions under those rules would be contained in the federal standards and no additional or different defense provision in a SIP would be warranted or appropriate.
In the proposal, the comment period was initially set until March 25, 2013 and extended until April 11 after a public hearing was held on March 12. EPA received numerous requests for an extension of the public comment period for 60 – 90 days beyond April 11, 2013. On April 2, EPA extended the public comment period for an additional 30 days until May 13, 2013. Industry and trade associations as well as state and local air pollution agencies in potentially affected states requested an extension arguing that the complex, far-reaching nature of the proposal and unique state specific issues required additional time to provide meaningful and comprehensive comments on all aspects of the proposal. Sierra Club requested that the comment period not be extended for an additional 60 – 90 days. In granting the 30 day extension, EPA noted that the public would now have 80 days from the date the proposal was published in the Federal Register and 89 days from the date the proposal was posted on the EPA website to submit comments.
To view a complete PDF of the First Quarter 2013 issue of the Air Quality Letter, click HERE