On June 12, 2015, the USEPA published its final regulatory action requiring 36 states to remove from their State Implementation Plans (SIPs) exemptions from emission limits during startups, shutdowns and malfunctions (SSM). See:

https://www.federalregister.gov/articles/2015/06/12/2015-12905/state-implementation-plans-response-to-petition-for-rulemaking-restatement-and-update-of-epas-ssm

This action requires 17 states to remove automatic exemption from emission limits in rules (affirmative defenses) because of SSM from their SIPs. This change will likely impact the operating procedures of many facilities that have automatic SSM exemptions included in their air permits and increase their compliance liability.

The USEPA first proposed this action in 2013 as a result of a Sierra Club petition. The USEPA revised its original proposal in 2014 after the D.C. Circuit Court held that an affirmative defense against civil penalties for toxic air emissions by Portland cement manufacturers, even in the event of an unavoidable malfunction, cannot be made.

In its discussion of this final action, the USEPA stated that while the agency was now prohibiting automatic SSM exemptions and affirmative defenses, it will allow discretion by air agency personnel exercised on a case-by-case basis. It encourages alternative emission limits or mandatory work practices to be required specifically for SSM events.

Affected states must submit their SIP revisions to the USEPA for approval by Nov. 22, 2016.

In the meantime, to properly prepare for implementation of this change affected facilities (those currently with SSM exemptions) should research and determine alternative emission limits that it can meet or work practices that it can implement during SSM events to provide to the applicable air agency when elimination of automatic SSM exemptions and affirmative defenses goes into effect, and the air permit must be re-examined and revised. It is likely that states will require such information during a future renewal or modification of an air permit. It is better for a facility to be “ahead of the game”, and provide proposed changes with rationale to the agency, who may have little basis to make a decision.

CCES has the experts to help you establish workable alternative emission limits and work practices during SSM events, and help you modify your permits – under your terms – and negotiate with your regulatory agency. Our Air Permit experts have much experience in industrial emissions all over the country. Contact us today at 914-584-6720 or at karell@CCESworld.com.