Should You Throw Your SSM Plan Out the Window Now That the DC Circuit Has Issued Their Mandate Vacat

On October 16, 2009, the United States Court of Appeals for the District of Columbia Circuit (the Court) issued its mandate vacating the Startup, Shutdown, and Malfunction (SSM) exemption provisions of 40 CFR §§63.6(f)(1) and (h)(1).  The Court issued its original SSM vacatur ruling on December 18, 2008.  Since then, the regulated community has generally been in a state of confusion regarding the full impact of the Court’s decision on affected operations.   On July 22, 2009, in the wake of the Court’s findings, U.S. EPA issued guidance, known as the Kushner Guidance Letter, that attempted to clarify which startups, shutdowns, and malfunctions (SSM) are exempt from applicable Maximum Achievable Control Technology (MACT) standards and which are not.  The Kushner Guidance Letter states U.S. EPA’s position that the vacatur of the SSM exemption will, immediately upon issuance of the mandate, affect only those MACT standards that both incorporate the specific vacated SSM Exemption provisions by reference (i.e., 40 CFR §§63.6(f)(1) and (h)(1)) and contain no other text that provides SSM protections. 

In addition to the direct and immediate impact of the vacatur on sources subject to the specific MACT standards identified by U.S. EPA, there is also a broader impact.  Many state air pollution control agencies are reviewing all operating permits that contain SSM conditions.  One of the areas of scrutiny is how companies are implementing the “general duty” provisions of 40 CFR Part 63.  While SSM plans may now be considered moot at certain sources, the general duty requirements of the SSM provisions remain in effect and require source owners and operators to develop, implement, and regularly update their SSM plans.  These plans must include detailed recordkeeping, reporting, and training requirements.  While companies may be following their existing SSM plans, some companies have been failing to update these plans as they become aware of additional operational upset conditions resulting in SSM incidents. 

Not only are companies required to follow their SSM plans, but they also must take all reasonable measures to reduce emissions from the affected sources to the greatest extent which is consistent with good safety and air pollution control practices.  More importantly, and in light of the recent court decision, where the SSM plan fails to address or inadequately addresses an event that meets the characteristics of a malfunction, but was not included in the SSM plan at the time the owner or operator developed the plan, the owner or operator must revise the SSM plan within 45 days after the event. 

In light of this spotlight created by the recent Court action, it is imperative for affected source owners and operators to be absolutely certain that they are keeping the necessary records, filing any required reports, and updating their SSM plans regularly, regardless of the vacatur.  You can be sure that SSM plans will be high on the checklist of both the U.S. EPA and the state air pollution control agencies during Title V compliance inspections.