A Resolution in the Case of ‘Upset’ Emissions

U.S. EPA has ended an almost two-year long battle with environmental groups regarding provisions in State Implementation Plans (SIPs) related to emissions during Startup, Shutdown and Malfunction (SSM) events.  U.S. EPA had approved SIPs that permitted these so-called ‘upset’ emissions without penalty.  Please click here to see a map of the states that will be affected if this proposed rule becomes final.  The dispute with environmental groups, including the Sierra Club and WildEarth Guardians, dates back to June 2011, when these groups first petitioned U.S. EPA to change the rule.  Environmentalists claimed SIPs that exempted emissions during SSM events allowed for elevated levels of pollution during events that should be controlled, essentially giving a free pass to facilities to exceed emission limits.  U.S. EPA was pressured by the groups to issue a ‘SIP Correction,’ which would force states to immediately address this issue by extracting these provisions from their SIPs.  When it became clear that U.S. EPA was going to delay their response to this petition, environmental groups took swift action and sued in order to force a deadline.

On February 12, 2013, U.S. EPA issued a ‘SIP Call,’ in which states found to be in violation will have 18 months to rewrite and submit a revised SIP in hopes of U.S. EPA approval. In the proposed rule, U.S. EPA no longer allows facilities to emit excess pollution during periods of planned startup and shutdown, but DOES permit facilities to continue to allow excess emissions during unplanned malfunction events.  In the case of a malfunction event that causes excess emissions, the facility must submit an ‘affirmative defense’ to U.S. EPA in order to shield themselves from penalties.  This approach is consistent with recent actions related to SSM events as specified in the General Provisions in Part 63, Subpart A of the National Emission Standards for Hazardous Air Pollutants (NESHAP).  Regarding the proposed rule, U.S. EPA states that they “realized that [current] provisions allow opportunities for sources to repeatedly emit pollutants during such periods in quantities that could cause unacceptable air pollution in nearby communities with no legal pathway for air agencies, the EPA, or the courts to require the sources to make reasonable efforts to reduce these emissions.”  By issuing the ‘SIP Call,’ U.S. EPA has stated that it is “articulating a policy that reflects this principle.”  An attorney for the Sierra Club said that the group was pleased with the actions that U.S. EPA took to end SSM exemptions, but that U.S. EPA could, and should, have done more to protect human health and the environment from dangerously high levels of pollution.  U.S. EPA will accept public comment on the proposal for 30 days from the date it is published in the Federal Register.