The Forecast Calls for a Mixed Bag of Options for the SSM SIP Call

Our staff at ALL4 includes meteorologists who still have that weather forecasting bug in them. Our business is air quality consulting, and we are often asked about our short-term and long-term forecasts on air quality regulations and how they may impact a specific facility or an industry sector as a whole. In fact, each January, our “look ahead” 4 The Record article is just that – a forecast of important topics to follow for the upcoming year. Since we did not specifically address the Startup, Shutdown, and Malfunction (SSM) State Implementation Plan (SIP) Call in our January 2016 look ahead article, the timing feels right to do so now since we are approximately six (6) months away from the U.S. Environmental Protection Agency’s (EPA) November 22, 2016 deadline for affected states to submit SIP revisions to address excess emissions during SSM events. With weather forecasting, it is often a good idea to look at what has happened before forecasting what is to come. So let’s start with a brief recap of the SSM SIP Call.

A Little Refresher

On May 22, 2015, the U.S. EPA issued a final action regarding state SIPs that were deemed to not meet the Clean Air Act (CAA) requirements of treatment of excess emissions during periods of SSM. The U.S. EPA found that certain SIP provisions in 36 states were substantially inadequate to meet the CAA requirements and, therefore, issued a “SIP call” for these 361 states. The final action for the SIP Call was published in the Federal Register on June 12, 2015. The affected states have until November 22, 2016 to submit their corrective SIP revisions.

A list of U.S. EPA’s final actions for all affected states can be found here.

In the final action, U.S. EPA made the following key clarifications regarding SIP emissions limitations:

• The emissions limitations do not need to be numerical in format
• The emissions limitations do not have to apply the same limitation (e.g., numerical level) at all times, and
• The emissions limitations may be comprised of a combination of numerical limitations, specific technological control requirements and/or work practice requirements.

U.S. EPA further clarified that emissions limitations in SIPs may contain components applicable to different modes of operation that take different forms. U.S. EPA emphasized that regardless of how a state agency expresses a SIP emissions limitation, the emissions limitation as a whole must be continuous, must meet applicable CAA stringency requirements, and must be legally and practically enforceable. U.S. EPA gave states “approved” options to adequately address SSM provisions within their SIPs. Those options included:

• Removing SSM exclusions so that emission limits apply at all times,
• Adding enforcement discretion language,
• Revising emission standards, or
• Creating alternative work practice standards (WPS) for periods of startup and shutdown.

States can use any combination of these options to meet the requirements of the CAA.

The Forecast for SSM Compliance Options in Select States

Through our project work and our participation in various air quality technical associations, ALL4 has learned what several states are proposing for their response to the SSM SIP Call. These options are still under review by the states and are subject to change. A sampling of what certain states are proposing is provided below. If your facility is located one (1) of these states, the operational and permitting implications will not affect you in the near term. However, ALL4’s long range forecast for compliance at such facilities calls for a 90% chance for permit modifications, changes in operational procedures, and/or more scrutiny of data. Why not 100%? We are accounting for additional lawsuits and related legal challenges that go hand in hand with sweeping regulatory actions such as this.

Of note: if the U.S. EPA finds that an agency fails to submit a complete SIP revision that responds to the SIP call, or if the U.S. EPA disapproves such SIP revision, then the U.S. EPA has an obligation under CAA section 110(c)(1) to promulgate a Federal Implementation Plan (FIP) no later than two (2) years from the date of the finding or the disapproval, if the deficiency has not been corrected before that time.

Georgia

Even though Georgia is one (1) of a group of states currently associated with a lawsuit to have the SSM SIP Call stricken, Georgia has made significant progress in developing a plan to revise its SIP. Georgia plans to implement WPS for periods of startup and shutdown, but would not include periods of malfunction. Georgia is proposing general standards for air pollution control devices (i.e., operating at all times unless some other situation related to safety or a hazardous operating conditions precludes operation), adhering to work practice standards established in applicable New Source Performance Standards (NSPS) or National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations, and implementing case-by-case determinations that would be enforceable through either a Title V permit or Prevention of Significant Deterioration (PSD) permit. Georgia is on-track to meet the November 22, 2016 deadline.

Tennessee, South Carolina, North Dakota, and Louisiana

Tennessee, South Carolina, North Dakota, and Louisiana are proposing to remove the SSM exemptions from their state rules. In other words, numerical limits will apply at all times. At this time, they are not proposing replacement of the SSM exemptions with WPS.

North Carolina

The North Carolina Division of Air Quality (NCDAQ) is proposing a similar approach as Georgia, with a slight twist. NCDAQ proposes to remove the SSM exemptions within their state rules and replace them with WPS. However, NCDAQ is creating a WPS for periods of startup and shutdown, as well as another for periods of malfunction. ALL4 also understands that North Carolina’s legislative process may preclude meeting the statutory deadline.

Alabama

ALL4 understands that Alabama has not fully developed its proposed revisions at this time, and likely will not meet the statutory deadline.

Arkansas

Arkansas Department of Environmental Quality (ADEQ) has initiated revisions to their SSM exemption rules. ADEQ has proposed to remove the language that provides for affirmative defense during periods of SSM and replace it with language that provides factors for the Director’s consideration in determining whether enforcement action is warranted. ADEQ is also proposing to include a rescission clause that would restore affirmative defense in the event the U.S. EPA or Federal court stays, vacates, or withdraws the SSM SIP Call. Arkansas anticipates meeting the November 22, 2016 deadline.

Oklahoma and New Mexico

Oklahoma Department of Environmental Quality has drafted revised rule language to replace affirmative defense with mitigation and alternative emission limits. Oklahoma has proposed mitigating factors for excess emissions during malfunctions. New Mexico Environment Department Air Quality Bureau is proposing revisions to remove the applicable sections of its SSM rules. The Air Quality Bureau recently held public hearings to gather feedback from the public and industry representatives. New Mexico is proposing to adopt affirmative defense as a State-only rule.

Texas

Texas has chosen to wait on the outcome of the SSM SIP Call litigation before proceeding with rule changes.

Other SSM activity

We have noticed other SSM activity in recent months as part of Federal rulemakings. U.S. EPA extended several comment periods for an Information Collection Request (ICR) for multiple NSPS subparts. The ICRs are focused on data already submitted by the affected facilities that includes initial notifications, performance tests and periodic reports and results, and maintaining records of the occurrence and duration of periods of startup, shutdown, and malfunction. U.S. EPA is also interested in reviewing data around any period when monitoring systems were inoperative. The affected NSPS subparts include the following:

• NSPS for Secondary Lead Smelters (Subpart L)
• NSPS for Small Municipal Waste Combustors (Subpart AAAA)
• NSPS for Stationary Combustion Turbines (Subpart KKKK), and
• NSPS for Grain Elevators (Subpart DD)

Other SSM Implications

How could these changes to your state SIP rules impact your existing permits? As we discussed in an October 2014 4 The Record Article, Title V operating permits must include “emission limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance” or “all applicable requirements”. Applicable requirements can include emission limits, WPS and the associated monitoring, testing, recordkeeping, and reporting provisions associated with the limits or work practice standards. Currently effective SSM provisions may exempt the source from compliance with numeric standards during SSM events. Therefore SSM provisions may be included in Title V operating permits as source specific “stand alone” conditions, facility-wide general requirements, or included within specific monitoring, recordkeeping or reporting requirements.

Reconciling the SSM SIP Call, various court decisions, mandates, and U.S. EPA guidance memoranda with a given facility’s operating permit is not exactly a straight forward proposition. For example, if a Title V operating permit includes specific SSM exemption language, an argument could be made that the SSM provisions of the Title V permit for the source would remain in effect for the term of the permit. Of more concern, particularly given the fact that many times the state regulatory authorities do not reopen Title V operating permits just to add in new applicable requirements, is the fact that 40 CFR §70.5(b) obligates owners and operators to supplement or to correct information as necessary to address requirements that become applicable to a source after the date that a complete application was filed, but prior to the issuance of a draft permit. This provision could affect facilities with sources impacted by SSM changes that are operating for extended periods under an application shield due to somewhat common delays in the regulatory agency review/issuance of operating permit renewals. In such instances, the owner/operator may be obligated to supplement or correct their Title V operating permit application to remove the SSM provisions associated with the SSM SIP Call.

Sounds like a good time to have an attorney on speed dial!

Where Do We Go From Here?

We expect to see even more activity from the states involved in the SSM SIP Call. The November 22, 2016 deadline is fast approaching for the affected states to get their SIPs revised to comply with the CAA. The SIP call and the threat of the imposition of a FIP are indications that SSM exemptions are truly endangered. Stay tuned for the outcome of the SSM SIP Call litigation. If you need help navigating your state’s SSM (or removal of) rules, let us know.