U.S. EPA Reverses Reversal of 2015 SSM SIP Policy

On October 9, 2020, the U.S. Environmental Protection Agency (U.S. EPA) issued a guidance memorandum regarding a change in policy for certain startup, shutdown, and malfunction (SSM) provisions in State Implementation Plans (SIPs) pursuant to the Clean Air Act (CAA).  This memo signaled a change in policy from a 2015 action.  Just short of one year later, U.S. EPA issued another guidance memorandum on September 30, 2021, withdrawing and reversing the October 9, 2020 guidance memorandum. These guidance memoranda pertain to two SSM policy issues: (1) whether excess emissions can be exempted during periods of SSM, and (2) whether affirmative defense from civil penalties can be claimed for exceeding emissions limits when the exceedance was unavoidable. The September 30, 2021 reversal is of particular interest in three states: Texas, North Carolina, and Iowa; but you’ll have to read on to learn why.

What Exactly Was Reversed?

To explain what was reversed, we must first go back to 2015, when U.S. EPA published a notice in the Federal Register “clarifying, restating and revising” its overall SSM SIP policy (which addressed more than the two particular policy statements at issue here). U.S. EPA’s 2015 SSM SIP Policy was that SIPs could neither contain exemptions for excess emissions during SSM, nor provide for affirmative defense of unavoidable excess emissions. Based on that policy, U.S. EPA determined that the SIPs for 36 states (45 total jurisdictions) contained such provisions and were therefore inconsistent with the CAA, and issued a “SIP call” to those states to remove or satisfactorily address those provisions. More on that later.

I previously wrote about the 2020 SSM SIP Guidance Memo, which superseded those two 2015 policy statements, but which notably did not withdraw the 2015 SIP call (although U.S. EPA paused their reviews of the SIP revisions they had received as a result of the call). U.S. EPA stated in the 2020 SSM SIP Guidance Memo that SIPs could contain exemptions for excess emissions during SSM and provide for affirmative defense of unavoidable excess emissions under certain circumstances. Namely, when the SIP as a whole is protective of the National Ambient Air Quality Standards (NAAQS) by having various redundant planning provisions. U.S. EPA also stated in the 2020 SSM SIP Guidance Memo that the 2015 SSM SIP Policy incorrectly applied a determination regarding SSM provisions in Federal regulations developed under section 112 of the CAA [pertaining to National Emission Standards for Hazardous Air Pollutants (NESHAPs)] to state regulations under section 110 of the CAA (pertaining to SIPs).

The 2021 SSM SIP Guidance Memo withdraws the 2020 SSM SIP Guidance Memo and reinstates the 2015 SSM SIP Policy. Effectively, the 2020 SSM SIP Guidance Memo never existed; the reversal was reversed.

What Does It Mean?

While it may seem inconsequential to go back to how things were only a year earlier, the 2021 SSM SIP Guidance Memo will have additional, but perhaps not immediate impacts. First, the 2020 SSM SIP Guidance Memo stated that U.S. EPA would reinitiate review of the SIP revisions received as a result of the 2015 SIP call, so those states can still expect to hear from U.S. EPA; only now the perspective on the two policy statements will be reversed. U.S. EPA received 32 SIP submissions and will likely issue a finding of failure to submit to the states that did not submit a SIP revision as a result of the 2015 SIP call.

Second, remember that teaser in the introduction about Texas, North Carolina, and Iowa? The U.S. EPA Regional Offices for those three states withdrew the SIP calls for their SIPs containing SSM exemptions (North Carolina and Iowa) or affirmative defense provisions (Texas) before the 2020 SSM SIP Guidance Memo. Those actions were inconsistent with the national 2015 SSM SIP Policy at the time, but ultimately aligned with the 2020 SSM SIP Guidance Memo. Now that the 2015 SSM SIP Policy has been reinstated, U.S. EPA is expected to revisit the prior SIP actions for those three states.

Why the Change?

U.S. EPA states in the 2021 SSM SIP Guidance Memo that “the statutory interpretations extensively discussed in the 2015 Policy are more consistent with the CAA and relevant case law for the reasons explained in the 2015 SSM SIP Action.” U.S. EPA goes on to specify that the 2020 SSM SIP Guidance Memo failed to “adequately address CAA requirements other than NAAQS attainment and maintenance,” one example of which is that section 302(k) of the CAA requires that “all emission limitations apply on a ‘continuous’ basis.” U.S. EPA states that the 2015 SIP call “was intended to ensure that all modes of source operation, including periods of SSM, have emissions limitations in place that can be appropriately enforced.”

U.S. EPA also reminds us in the 2021 SSM SIP Guidance Memo that the 2015 SSM SIP Policy “was intended to ensure that all communities and populations across the affected states, including minority, low-income and indigenous populations overburdened by pollution, receive the full health and environmental protections provided by the CAA.” With the Biden administration’s focus on Environmental Justice, highlighting this connection is no surprise.

What’s Next?

My previous blogpost discussed how SIP revisions take time to be developed and implemented. As I mentioned earlier, many SIP revisions have already been submitted in response to the 2015 SIP call. To address the requirement for emissions standards to apply on a continuous basis, states may choose to remove the affected SSM provisions, resulting in existing emissions standards applying at all times, or to replace them with alternative standards, such as work practices, that apply during periods of SSM. It is important to understand whether your state submitted a SIP revision in response to the 2015 SIP call, how the SIP revision addressed the SSM provisions, and your state’s current position on SSM exemptions. When U.S. EPA takes action on your state’s proposed SIP revision, review the proposed changes, provide comments on U.S. EPA’s proposed approval or disapproval, and evaluate how operations at your facility may need to change based on the revised SIP provisions.

SSM has always been and continues to be a complex and contested topic in air quality. The issuance of the 2021 guidance memorandum is just the latest in what are sure to be many more air regulatory changes in the future. ALL4 will continue to follow developments around SSM closely. Please reach out to me at 610.933.5246 x122 or lkroos@all4inc.com if you have any questions about how SSM provisions affect your facility.