In response to Environmental Groups’ lawsuit, the EPA is immediately issuing new guidelines on starting, shutting down, and malfunctioning SIP calls | Clark Hill PLC


On September 30, 2021, the Biden administration took the latest step in the startup, shutdown and malfunction (SSM) saga when the U.S. Environmental Protection Agency (EPA) issued a policy to repeal a policy issued by the Trump administration (issued on 9th October). , 2020), which allowed states to maintain regulatory exemptions for excess emissions that occurred during the SSM and to revert to the Obama administration’s policy of requiring states to remove such exemptions from their SIPs.

The memo was issued in response to a lawsuit filed September 8, 2021 by the Sierra Club, along with the Natural Resources Defense Council (NRDC) and the Environmental Integrity Project, against the EPA. The lawsuit aims to enforce EPA:

… to fulfill belated non-discretionary obligations to remove illegal loopholes in the Clean Air Act [CAA] government implementation plans (SIPs). The loopholes in question include “start-up, shutdown and absenteeism” (SSM) periods in industrial plants. The administrator’s failure to comply with these non-discretionary obligations particularly impacts vulnerable environmental justice communities, which are often exposed to increased, dangerous air pollution during SSM events.

The lawsuit alleges that the EPA failed to completely remove the SSM exemptions required by the CAA from SIPs. As discussed below, a federal appeals court found the SSM “loopholes” to be illegal, and in 2015 the EPA launched a “SIP call” instructing states to submit SIP revisions that effectively removed the “loopholes”. An example of a “loophole” is a waiver for “force majeure” events, such as extreme weather, that could warrant a release of excess emissions. The EPA’s deadline to make decisions on state-filed SIPs was May 22, 2017, but many states and flight districts did not file a SIP revision in response to the 2015 SSM SIP Call. If a state has not filed a SIP revision within six months of the appeal due date, the CAA requires the EPA to make a determination of non-filing. The EPA has not yet published this result for certain states. In addition, the EPA has not yet taken action against states that have not submitted their SSM-SIP revisions.

Environmental groups point out that the SSM “loopholes” in many government SIPs allow industrial facilities to exceed their emission limits for air permitting and do not require verification of the frequency, time, or amount of emissions for those exceedances. The Biden EPA has also prioritized environmental justice issues, finding that Trump policies do not protect low-income and minority communities disproportionately affected by air pollution. Communities near these facilities are at increased risk of various cancers, respiratory diseases, and other serious health problems. Low income and minority communities are often located near industrial sites and are most at risk.

In the new policy statement, the EPA states that it “hereby reproduces its previous guideline that SIP provisions containing exceptions or positive defense provisions are inconsistent with the CAA requirements and“ would therefore generally not be approvable if they were included in a SIP “submitted to EPA for agency approval.” The EPA is committed to finally implementing the 2015 SIP Call after years of delay, and the new directive will ultimately shape the flight plans of many countries.

This new policy reverses guidance from Trump’s EPA, which granted exemptions for SIPs in Texas, North Carolina and Iowa and stated their intention to take further action on a regional basis. (Trump’s EPA never revoked the 2015 SIP calling rule that required 36 states to remove SSM exemptions from their flight plans). In the new memo, the EPA promises to proceed with a notification and comment regime to address the Texas, North Carolina and Iowa SIPs and that no other flight plans need to be changed immediately as a result. This is, for example, a response to claims by environmentalists that many large industrial companies in Texas are using the positive defense rules of the Texas SIP to justify excessive air emissions, and that the alleged “annoyances” are largely preventable, rather than through the affirmative defense rules.

The new memo also sets out the EPA’s position on Biden, which states that it is following the judgments of the U.S. Court of Appeal for the District of Columbia Circuit preventing EPA from approving SIPs with SSM provisions. In 2008 the Court found that the EPA cannot include SSM exemptions in its own rules. In 2014 the Court also found that affirmative objections were inadmissible under EPO rules. In contrast, the Trump EPA viewed the DC Circuit decisions as limited to excluding such exceptions in the EPA’s National Emissions Standards for Hazardous Air Pollutants (NESHAPs), but not in SIPs. Accordingly, the now-repealed Trump-EPA guideline stated that SSM exemptions are permissible if a state has taken a number of measures in its SIP that together are sufficient to achieve and maintain the National Ambient Air Quality Standards (NAAQS) to ensure.

Announcing this policy change is likely to revive dormant lawsuits, such as the state exemptions lawsuits for Texas, North Carolina, and Iowa (Sierra Club v EPA and Florida Electric Power Coordinating Group, Inc. v. EPA committee). Environmental groups frustrated by the slow progress in implementing the 2015 SIP call also filed a lawsuit in the U.S. District Court for the Northern District of California in September.

Approved sources should continue to work with their government agencies on new regulations and / or SIP revisions as well as possible revisions of their approval requirements. When the EPA begins implementing the SIPs, sources should get involved in the rulemaking process to maintain their ability to challenge the EPA’s decisions.


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