EPA proposes eliminating all startup, shutdown and malfunction affirmative defense provisions from SIPS.

On September 17, 2014, the United States Environmental Protection Agency (EPA) issued a supplemental notice of proposed rulemaking (SNPR) in which it partially reversed course on its proposed revisions to its startup, shutdown and malfunction policy (SSM policy) for facilities subject to state implementation plans (SIPs) under the Clean Air Act. In February 2013, EPA proposed a SIP rule in which it announced that it was modifying its SSM policy to eliminate affirmative defenses for emissions exceedances occurring during the startup and shutdown of facilities, but would continue to permit affirmative defenses for malfunctions. Following the D.C. Court of Appeals’ (hereinafter D.C. Circuit) decision in NRDC v. EPA, EPA has now eliminated the affirmative defense for excess emissions that occur during malfunctions. EPA now proposes to require an additional 17 states (including 23 air districts) to eliminate startup, shutdown and malfunction affirmative defense provisions from their SIPs and re-submit them to EPA for approval within the next 18 months. EPA accepted public comments on the SNPR until November 6, 2014.

The SNPR supplements and revises EPA’s February 2013 proposed rule regarding the availability of affirmative defenses for emissions exceedances that occur during startups, shutdowns and malfunctions. The SNPR grants the Sierra Club’s 2011 petition challenging affirmative defense provisions in SIPs, eliminates the affirmative defense in SIPs for malfunctions, identifies additional SIPs that require revision because they contain affirmative defense provisions for malfunctions, and requires all of the SIP provisions to be revised and re-submitted for EPA approval within 18 months (a SIP call). The SNPR provides that EPA’s “past guidance to states in the SSM policy is flawed,” because neither EPA nor the states have the authority to create an affirmative defense for malfunctions.