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An Update on Startup, Shutdown,
Malfunction Developments:
Muddying the Waters?
Presentation by Paul Collins
April 21, 2015
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Muddying the Waters:
An Update on Startup, Shutdown, Malfunction
Developments
OVERVIEW
 History and Origin of SSM Exemptions:
– EPA Treatment
 Legal Issues and Decisions
 EPA’s Reaction
– Regulations
– State Implementation Plans
 Remaining Questions
 Practical Considerations
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History: EPA’s Enforcement Discretion Approach
Facilities have a “general duty” to the extent practicable
to operate emission sources and pollution control
equipment in a manner consistent with good air
pollution control practice for minimizing emissions
1970’s:General duty approach. EPA determines that excess emissions
during SSM are not violations of NSPS.
1994:
EPA adopts similar SSM exemptions for NESHAP regulations – but
• Each source must develop and implement SSM Plan and
• SSM plan must be incorporated into T5 permit.
1999: EPA guidance forbids SIPs from exempting SSM events.
2002 – 2006: Series of EPA rules concerning lessening burden of SSM
plans, as well as public availability.
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History: Examples of SSM Rules
– Federal Approach
 General duty to minimize
emissions during an SSM
event.
 SSM plans for affected
units.
– NESHAPs
– NSPS
– Title V Permits (ROPs)
Excess emissions are typically direct
indications of noncompliance with
the emission standard and, therefore,
are directly enforceable. Without
demonstrating that a startup,
shutdown, or malfunction event
caused the excess emissions, the
owner or operator cannot certify
compliance. In such instances where
the excess emissions occurred
during a startup, shutdown, or
malfunction, the owner or operator
must also have followed the plan to
certify compliance
59 FR 12408-01
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History: Examples of SSM Rules
– State Approach
 R 336.1911 – Malfunction Abatement Plans
– Authority to require.
– Preventative Maintenance Program (PMP)
– Description of corrective procedures or operational changes in response.
 R 336.1912 – Abnormal Conditions – Duties and Reports
– General duty to minimize emissions to the extent reasonably possible.
– Prompt reporting of emission exceedances.
 R 336.1915 – Enforcement Discretion for SSM
– If MDEQ determines that emission violations resulted from SSM – MDEQ may use enforcement
discretion.
– Defines malfunction and duties.
 R 336.1916 – Affirmative Defense for Start-up and Shutdown Emissions
– Available in any enforcement proceeding – excluding judicial action seeking injunctive relief.
– Must comply with Rule 912.
– Does not apply to exceedances of NAAQS or Increment .
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Legal Issues
Clean Air Act Applicability
Third Party and Judicial Enforcement
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Legal Issues: Clean Air Act Applicability
Key Definitions:
 (k) “emission limitation” and “emission standard” mean a requirement
established by the State or the Administrator which limits the quantity,
rate, or concentration of emissions of air pollutants on a continuous
basis, including any requirement relating to the operation or
maintenance of a source to assure continuous emission reduction,
and any design, equipment, work practice or operational standard
promulgated under this chapter.
 (l) “standard of performance” means a requirement of continuous
emission reduction, including any requirement relating to the operation
or maintenance of a source to assure continuous emission reduction.
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Legal Issues: Clean Air Act Applicability
Sierra Club v EPA, 551 F3d 1019, 1027 (DC Cir 2008)
When sections 112 and 302(k) are read together… Congress
has required that three must be continuous section 112compliant standards. The general duty is not a section 112compliant standard.
Because the general duty is the only standard that applies during
SSM events … the SSM exemption violates the CAA’s
requirement that some section 112 standard apply continuously.
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EPA’s Reaction to Sierra Club
 Revised MACT standards to delete existing SSM exceptions and
require compliance with emission limits at all times, including during
startup and shutdown.
 Determined where round-the-clock compliance was infeasible and set
special emission limits or work practice standards applicable only
during startup and shutdown.
 For malfunctions: Defined as sudden, infrequent, and not reasonably
preventable and determined that it was not feasible to develop
emission limits.
 Added affirmative defense to civil penalties for exceedances of
emission limits that are caused by malfunctions.
 Permitting: For case-by-case emission limits (like BACT) require an
emission limit for all foreseeable operating scenarios (like startup and
shutdown).
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Legal Issues:
Third Party and Judicial Enforcement
NRDC v EPA, 749 F3d 1055 (DC Cir 2014)
Struck down EPA’s proposed National Emission Standard for
Hazardous Air Pollutants (NESHAP) rule for Portland Cement
Plants
CAA does not authorize EPA to establish an affirmative defense
to penalties for excess emissions during malfunctions.
The CAA's citizen suit provision vests authority over private suits
in the courts and that EPA's penalty-setting authority is limited to
administrative actions. Accordingly, only the courts can
determine, on a case-by-case basis, whether civil penalties are
appropriate.
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EPA’s Reaction to NRDC
 EPA has begun proposing NESHAP revisions that
do not include the malfunction defense invalidated
by the circuit court. Examples:
–
–
–
–
–
Petroleum refineries.
Off-site waste and recovery operations.
Oil and natural gas.
MATS and Utility NSPS.
Boilers and process heaters.
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EPA’s Reaction to NRDC cont.
Expanding the Rationale to SIPs:
 September 17, 2014, Supplemental Notice of Proposed Rulemaking
 “Extends the logic of the D.C. Circuit court’s decision in NRDC v. EPA
to SIP provisions.”
 Eliminates affirmative defense for excess emissions that occur during
malfunctions.
 Requires an additional 17 states to eliminate startup, shutdown and
malfunction affirmative defense provisions from their SIPs.
 Planned effective Date of May 22, 2015.
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Remaining Questions cont.
 Potential Split of Authority
The Fifth Circuit upheld EPA’s approval of a SIP providing for an SSM
affirmative defense, noting that EPA was entitled to Chevron
deference on the issue. Luminant Generation v. EPA, (5th Cir. July
30, 2012).
In Sierra Club and NRDC, the D.C. Circuit declined to give Chevron
deference to the EPA with respect to the “continuous” emission limit
language in the Clean Air Act.
In NRDC, the D.C. Circuit stated that it did not confront the questions
of whether an affirmative defense may be appropriate in a SIP.
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Practical Implications:
A New Emphasis on Permitting?
EPA Permits:
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Practical Implications
 Removing a Defense in the Age of Continuous Compliance and
Self Reporting
–
–
–
–
Periodic Monitoring
Compliance Assurance Monitoring
Deviation Reporting
Compliance Certification
 Relying on Section 113(e)(1) of the Act?
– In determining the amount of any penalty to be assessed under this
section … the Administrator or the court, as appropriate, shall take into
consideration (in addition to such other factors as justice may require) :
• economic benefit
• seriousness of violation
• payment of previous
penalties
•
•
•
•
size of the business
economic impact
full compliance history
good faith efforts to
comply,
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Practical Implications: Defending on the Merits
Environment Texas Citizen Lobby, Inc v ExxonMobil Corp
2014 WL 7177794 (Dec 17 2014)
 Over 8-year period:
– 3,375 recordable emissions events and 901 deviations.
– Court reviewed excess emission events and found that some
were actionable – but declined to assess a penalty.
 Reasons for declining to assess a penalty:
– Facility in compliance the great majority of the time.
– Proactive compliance assurance and performance improvement
program in place.
– Duration of deviations was short.
– No evidence of harm to health or the environment.
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Paul Collins
collinsp@millercanfield.com
(517) 483-4908
UNITED STATES  CANADA  MEXICO  POLAND  CHINA
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