The Reality and Implications of SSM and NESHAPs

ALL4’s project experience often involves industrial clients that are subject to one (1) or more of the National Emission Standards for Hazardous Air Pollutants (NESHAPs) for source categories (40 CFR Part 63). NESHAPs regulate emissions of hazardous air pollutants (HAPs) either directly or through the use of a surrogate pollutant (e.g., carbon monoxide in lieu of regulating a vast number of organic HAPs that can be emitted from a combustion process). NESHAP-affected facilities must comply with a given numerical emission standard for the HAPs regulated by the applicable Part 63 subpart – no surprise there. However, determining the applicability of the numerical limits during atypical operating modes has been a complicated issue since the inception of NESHAP standards in the early 1990s. In this article, ALL4 looks at how the NESHAPs have presented an ever-evolving challenge that has raised serious questions about the compliance obligations of an affected facility. Specifically, this article addresses not what applies during “normal” operations, because that is typically well understood and black or white. Rather, we address what recent changes to the NESHAPs mean for compliance during operational periods outside of normal operations, namely periods of startup, shutdown, and malfunction (SSM).

How Did We Get Here?

The SSM provisions in the NESHAP rules originated in 1994, where 40 CFR Part 63, Subpart A specifies a “general duty to minimize emissions during startup, shutdown and malfunction events.” This provision provided NESHAP-affected sources with a conditional exemption from continuous compliance with the applicable emission standard during SSM events. To use the exemption, sources were required to comply with the general duty clause to reduce emissions to the “greatest extent possible,” consistent with safety and good air pollution control practices during SSM events. To satisfy the exemption provisions, sources were directed to develop a plan (SSM Plan) detailing possible SSM events, including procedures that would be followed to minimize emissions, identified corrective measures for addressing malfunctions, and summarizing the recordkeeping and reporting procedures that the sources would use to document compliance with the exemption provisions. The SSM Plan was also incorporated by reference into a facility’s Title V operating permit. Sources were required to submit semiannual reports of SSM events to their permitting authority.

In 2002, the U.S. Environmental Protection Agency (U.S. EPA) removed the requirement that a facility’s Title V operating permit incorporate the SSM Plan. Moving forward, the requirement was solely to develop and implement an SSM Plan. This action created an issue because the SSM Plan was no longer part of the Title V operating permit (and not eligible for a permit shield) and the plan could be changed without modifying the permit. Therefore, the SSM Plan was technically no longer subject to agency approval. Ultimately, facilities were required make their plans available for review upon request. Then, in 2006, the requirement to implement an SSM Plan was eliminated by U.S. EPA. It’s no wonder that confusion around SSM feels like it has been around forever.

The next major shift in the SSM provisions occurred in 2008 when the D.C. Circuit Court vacated the SSM exemption provisions for NESHAPs. In vacating the exemption, the court decided that the general duty to minimize emissions during SSM events was not consistent with Section 112(d) of the Clean Air Act (CAA) because the CAA requires that a Section 112 standard must apply continuously. Following the court’s findings, U.S. EPA issued guidance that is known as the “Kushner Guidance Letter” that was intended to clarify which SSM events are exempt from NESHAPs. The Kushner Guidance Letter stated that the vacatur of the SSM exemption was immediately effective upon issuance of the mandate (which occurred in October 2009) for only those NESHAPs that both incorporate the specific vacated exemption provisions by reference [40 CFR §63.6(f)(1) and (h)(1)] and contain no other text that provides SSM protections. It is interesting to note that these vacated SSM provisions remain in the electronic CFR today. However, U.S. EPA has repeatedly stated that these conditions are null and void. For example, see the first full paragraph on page 2 of the Kushner Guidance Letter. In addition, please refer to the October 16, 2014 Federal Register (Vol. 79, No. 200), pages 62137 and 62138 (1st column; 1st and 2nd paragraphs, and 1st paragraph, respectively).

The following table identifies some of the more common NESHAPs affected, and not affected, by the 2009 vacatur (at the time of the issuance of the mandate).

At this point, you might be asking yourself…did the mandate affect any NESHAP that I’m subject to? To answer that question, consider the following as an illustrative example. Table 1 of Subpart MM (NESHAP for Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand-Alone Semichemical Pulp Mills) indicates that 40 CFR §63.6(f)(1) and (h)(1) are applicable to the affected sources. Furthermore, Subpart MM does not contain explicit language exempting emissions during SSM events. Therefore, barring any other considerations the Subpart MM affected sources are required to be in compliance with emission limits at all times, even during SSM events.

By contrast, Subpart YYYY (NESHAP for Stationary Combustion Turbines) is an example of a subpart that was not immediately affected by the mandate. Subpart YYYY also contains a table (Table 7) that identifies each part of the general provisions that are applicable. The table shows that the vacated SSM general provision of 40 CFR §63.6(f)(1) applies [the rule does not have an opacity standard so 40 CFR §63.6(h)(1) is not applicable]. However, 40 CFR §63.6105(a) states “You must be in compliance with the emission limitations and operating limitations which apply to you at all times except during startup, shutdown, and malfunctions.” Therefore, the fact that the SSM exemption in the general provisions was made null and void does not impact SSM exemptions for Subpart YYYY (until if and when it gets updated) because the SSM exemption is explicit in the rule language. As a result of the litigation surrounding the SSM vacatur, U.S. EPA is, in general, addressing the SSM vacatur by revising individual NESHAPs that include explicit SSM exemption provisions during rule revisions associated with the required CAA Section 112(d)(6) eight-year residual risk and technology (RTR) review process.

For those NESHAP subparts that were apparently immediately affected by the 2009 SSM mandate, there may be a valid argument to support that a facility was not immediately affected. The argument is based on the premise that the vacated SSM exemption provisions remained in effect during the term of an affected facility’s Title V operating permit, if the permit specified SSM exemption language itself (i.e., not just the same reference), and a Part 70 permit shield is in place. We’ll continue exploring these implications later in the article.

Affirmative Defense

A separate, but related concept to SSM for consideration is affirmative defense. In 1999, U.S. EPA issued a policy document related to excess emissions in state implementation plans (SIPs) in which it discussed if, and how, a state may go beyond its enforcement discretion approach and include a provision in its SIP that would excuse a source from penalties if the source could demonstrate that it met certain objective criteria (referred to as an affirmative defense). Affirmative defense has become a hot topic lately, particularly with respect to NESHAP, but first let’s continue with a review of this history behind affirmative defense.

The 1999 policy clarified that states have the discretion to provide a defense to actions for penalties brought for excess emissions that arise during certain SSM events. An affirmative defense provision may only apply to actions for penalties, but not to actions for injunctive relief. An affirmative defense does not remove responsibility from an incident, but it protects the responsible party from administrative or monetary penalties. This restriction ensures that authorities remain able to protect ambient air quality standards and Prevention of Significant Deterioration (PSD) increments.

In the past several years, U.S. EPA has included affirmative defense provisions in several NESHAPs. From a cursory search of 40 CFR Part 63, we identified at least 11 NESHAPs with affirmative defense provisions included as a distinct subsection in a given subpart. However, in 2014, the D.C. Circuit Court vacated the affirmative defense provisions in the NESHAP for the Portland Cement Manufacturing Industry (40 CFR Part 63, Subpart LLL). The court found that U.S. EPA lacked authority to establish affirmative defense for private civil suits. The D.C. Circuit Court’s ruling does not eliminate the use of affirmative defense in private civil suits in which plaintiffs seek to have violators pay monetary penalties. The ruling shifted the authority to allow an affirmative defense from the U.S. EPA to the courts. This action has set a precedent for recently proposed updates to NESHAPs (e.g., NESHAP for Mineral Wool Production and Wool Fiberglass Manufacturing; NESHAP for Petroleum Refineries), for which previous versions of the rules included affirmative defense provisions that have since been removed as part of RTR reviews. U.S. EPA has indicated that this process will continue as subsequent NESHAPs are updated.

Affirmative defense continues to make news, as U.S. EPA has recently issued a supplemental notice of proposed rulemaking that means states will not only be prohibited from allowing excess emissions during SSM events, as spelled out in its February 2013 SSM-related SIP call, they will also be prohibited from allowing regulated facilities to use the affirmative defense to avoid civil penalties for such emissions. Therefore, the importance of knowing the implications of SSM regulatory actions becomes critical to environmental managers. We’ll explore the details in the following section of the article.

Operating Permit SSM Implications

Pursuant to §70.6(a)(1), 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”. As we know, applicable requirements under the Clean Air Act (CAA) for a given facility typically originate from a state or local implementation plan (SIP), from a federal regulation such as NESHAP, or from a federal enforceable permit condition associated with a construction permit. Applicable requirements can include emission limits, work practice standards and the associated monitoring, testing, recordkeeping, and reporting provisions associated with the limits or work practice standards. SSM provisions are often associated with NESHAP, New Source Performance Standards (NSPS), and SIP requirements, and the 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. Needless to say, reconciling the various court decisions, mandates, and U.S. EPA guidance memoranda with a given facility’s operating permit is not exactly a straight forward proposition. Furthermore, the timing of the 2009 SSM mandate occurred when many facilities were in the midst of renewing their Title V operating permits. Clear guidance regarding how to address the 2009 SSM mandate in a renewal application was not issued by U.S. EPA or state or local permitting agencies, which further complicated the matter as time has passed with no specific action to address the issue.

As mentioned above, the 2009 SSM mandate immediately affected the 40 CFR Part 63 subparts that included references to the SSM exemptions of 40 CFR Part 63, Subpart A at 40 CFR §63.6(f)(1) and §63.6(h)(1), making those provisions null and void, even though those provisions remain in the online version of the rules. Conceptually, affected NESHAP sources were required to be in compliance with emission limits at all times including SSM events following the mandate. However, if a Title V operating permit included specific SSM exemption language for a NESHAP source affected by the SSM mandate and a Part 70 permit shield pursuant to 40 CFR §70.6(a)(1), a strong argument could be made that the SSM provisions of the Title V permit for the NESHAP source would remain in effect for the term of the permit. Many Title V operating permits were reopened and revised to reflect the SSM mandate for affected NESHAP sources because state regulatory authorities are obligated to reopen Title V operating permits for cause [40 CFR §70.7(f)(1)(i)] to reflect new applicable requirements. However, in many other instances, this just does not happen.

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 the SSM mandate 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 an affected NESHAP source.

Similarly, incorporating a construction permit for a significant modification into a Title V operating permit (even for a project unrelated to a NESHAP) can also trigger the need to revise the permit to reflect the impact that the SSM mandate had on affected NESHAP sources at the facility. Therefore, if you have not yet updated or supplemented your Title V operating permit application, the next construction permit project at your facility may be an opportunity to address the potential lingering issue.

The 40 CFR Part 63 subparts that were not immediately affected by the SSM mandate each included specific language that exempted sources from complying with numerical standards during SSM events and those standards were not immediately affected by the mandate. However, note that the mandate will eventually impact all NESHAPS as U.S. EPA is addressing the SSM vacatur in each of the 40 CFR Part 63 subparts that were not immediately impacted as part of their RTR review process. In essence, the specific SSM provisions remain applicable to such sources until the subpart has been revised. Upon promulgation, the revised NESHAP subparts will apply to affected sources regardless of how such sources are reflected in the Title V permit.

What options does U.S. EPA have when developing new or reevaluating current rules if emissions that exceed a numerical emission limitation during periods of SSM can no longer be considered exempt? First, in some instances U.S. EPA has established distinct modes of operations for evaluation. These modes of operation have included periods of startup, shutdown, and normal operation. Note that U.S. EPA did not define the term “malfunction” as a distinct operating mode resulting in no special considerations for periods of excess emissions that are a result of malfunctions. Consistent with the process for developing numerical emission standards for periods of normal operation, U.S. EPA could establish different numerical emission standards for periods of startup and shutdown. However the emission data for most regulated pollutants are not available during periods of startup and shutdown and virtually impossible to obtain.

In response, U.S. EPA has created work practice standards that sources must comply with during periods of startups and shutdowns in lieu of numerical limits. For example, 40 CFR Part 63, Subpart UUUUU (NESHAP for Coal- and Oil-Fired Electric Utility Steam Generating Units, also referred to as “Utility MATS”) requires the use of clean fuels (i.e., natural gas, distillate oil, or a combination of natural gas and distillate oil) during periods of startup of an affected unit. In addition, an affected emissions unit must first engage all of the applicable control technologies (except dry scrubber and selective catalytic reduction) when converting to firing coal, residual oil, or solid oil-derived fuel. Using the example above, many affected facilities may not have sufficient natural gas (i.e., clean fuel) capacity to bring affected units to the temperatures necessary to engage certain air pollution control devices (APCDs) such as electrostatic precipitators (ESPs), which when operated at temperatures less than the temperatures recommended by the manufacturer, could create a safety risk. Thus, an affected unit may not be able to reach the temperatures necessary to engage certain APCDs without the combustion of the primary fuel (i.e., coal).

Another important aspect of the work practice standard requirements for periods of startup and shutdown is how U.S. EPA defines the boundaries of startup and shutdown. For example, 40 CFR Part 63, Subpart DDDDD (NESHAP for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; also known as “Boiler MACT”) defines the end of startup “when any of the steam or heat from the boiler or process heater is supplied for heating, and/or producing electricity, or for any other purpose.” Thus, the startup period could end and normal operation could begin well before an affected facility may consider themselves as in normal operations. This could mean that an affected unit will be transitioning to a primary fuel after startup (by definition) has ended and the numerical emission limitation of normal operation is in effect.

In the past, U.S. EPA allowed facilities to define periods when startup begins, when startup ends and normal operation begins, when normal operation ends and shutdown begins, and when shutdown ends in their SSM Plan. U.S. EPA has now defined periods of startup and shutdown in new or revised rules with the introduction of the work practice standard requirements. These definitions can be restrictive and even not applicable for affected units. In response to the proposed Utility MATS rule, U.S. EPA received significant comments concerning startup and shutdown definitions causing U.S. EPA to reconsider these definitions. Keep in mind that many facilities may also have startup and shutdown definitions in their Title V Operating Permit that will most likely be different then the definition ultimately proposed by U.S. EPA.

Action Items

Now that you have an appreciation of the sordid history of SSM regulations, and the understanding of the potential compliance and permitting implications with respect to your facility’s permit and affected NESHAP sources, the following provides a summary of recommended actions that you (and likely, your corporate counsel) should consider.

The first action item may seem obvious, but without establishing a solid foundation, you cannot expect to build a successful compliance approach.

1. Identify and understand the NESHAPs that are applicable to your facility.

Determine if those NESHAPs incorporate the vacated SSM General Provisions by reference only or if they contain a similar exemption directly within the NESHAP (refer to the illustrative example above, as well as to the Kushner Letter). Remember that the SSM vacatur occurred five (5) years ago; therefore, review the current version of your applicable NESHAPs [40 CFR Part 63, which is organized in subsections due to the size of 40 CFR Part 63; by knowing the numerical citation of your NESHAPs (e.g., §63.741 for Aerospace Manufacturing and Rework Facilities), you can select the proper subsection for SSM-related requirements.

2. Identify the SSM standards for each NESHAP that applies to your facility and develop answers for the following questions:

• Are the SSM standards still in effect?
• Are they numerical emission limits specifically for startup/shutdown, with different limits for normal operation or are they work practice standards such as using certain fuels during periods of startup?
• Can you actually use these fuels during start-up?
• Do you understand what startup and shutdown procedures are required of you? You may have previously defined these procedures in your SSM Plan, but the contents of your SSM Plan may no longer be relevant.
• Does the NESHAP now contain an explicit definition of startup and shutdown, which may not be consistent with current operating procedures?
• Do your operators understand these new requirements?
• Do you need to conduct additional training?
• Are operating procedures and related plans up to date?

3. Review your operating permit for SSM related conditions in light of the discussion in the Operating Permit SSM Implications section above:

• Compare the SSM related operating permit conditions to the current NESHAP language.
• Understand if the vacatur has created new applicable requirements for your facility.
• Evaluate if changes to your operating permit are warranted.
• Understand when and how these permit changes need (or needed) to happen.
• Conduct an audit of your operating permit as it relates to applicable NESHAPs and their SSM requirements.  Consider using a third-party and counsel for liability protection, if necessary.
• If a Title V application (e.g., renewal application or a modification application) was submitted after the vacatur, did the application address the impact of the SSM vacatur?

4. If you still maintain and implement an SSM Plan (despite the 2006 action that eliminated the need for implementing a plan), Consider converting that SSM Plan to a Malfunction Plan that specifically addresses affirmative defense (until such time those provisions are removed from your NESHAP).

• Regardless, it is a good practice to have standard operating procedures for SSM events as part of a compliance management program.

5. Evaluate your practices regarding the aforementioned NESHAP reporting requirements.

• Have you continued to prepare and submit your semi-annual NESHAP reports as if nothing has changed since the vacatur? If so, you may want to revisit your semi-annual NESHAP reporting requirements and procedures to verify SSM events are correctly addressed, if necessary at all.

6. Maintain an awareness of SSM-related changes in NESHAPs, NSPS, and SIPs.

• Follow our blogs and 4 The Record articles. Talk to colleagues in your industry sector. Attend trade group or professional society meetings. But whatever you do, take advantage of the regulatory process, which allows the regulated community to review and comment on proposed rulemakings at various stages in the process.

Parting Thoughts

SSM continues to be a challenging topic for environmental managers and the regulated community as a whole. Because of the considerable amount of litigation and delays in implementing and issuing regulatory changes and updates [remember, 40 CFR §63.6(f)(1) and (h)(1) are still in the CFR despite being vacated five (5) years ago], the inner workings of SSM to a facility’s compliance approach has never been more complicated. We’ve identified several technical SSM issues that we have experienced in our projects. We also suspect there are many other layers that we have not uncovered, and some of you may have different opinions on the actions and considerations presented in this article. We encourage you to share your experiences with us so we all can learn from each other, including by posting questions and comments directly on our website. In addition, please do not hesitate to contact one (1) of the authors of this article.