EPA`S SSM Proposal - Troutman Sanders Environmental Law and

Randy E. Brogdon
Troutman Sanders LLP
600 Peachtree Street, NE
Suite 5200
Atlanta, GA 30308-2216
randy.brogdon @troutmansanders.com
West Palm Beach, FL
April 8, 2014
Background: SSM Provisions
• Allow emissions in excess of permit limits during,
or resulting from, unit startup, shutdown and
malfunctions under certain circumstances
• Most have been on the states’ books for decades
and were approved by EPA as part of State
Implementation Plan (SIP) submittals under the
Clean Air Act
• Not specific to any particular industry/pollutant
Florida Example
62-210.700 Excess Emissions.
(1) Excess emissions resulting from startup, shutdown or malfunction of any emissions
unit shall be permitted providing (1) best operational practices to minimize
emissions are adhered to and (2) the duration of excess emissions shall be
minimized but in no case exceed two hours in any 24 hour period unless
specifically authorized by the Department for longer duration.
(2) Excess emissions from existing fossil fuel steam generators resulting from startup
or shutdown shall be permitted provided that best operational practices to minimize
emissions are adhered to and the duration of excess emissions shall be minimized.
(4) Excess emissions which are caused entirely or in part by poor maintenance, poor
operation, or any other equipment or process failure which may reasonably be
prevented during startup, shutdown, or malfunction shall be prohibited.
Background: SSM Provisions
• Why SSM provisions are important:
– Sources may not be able to meet applicable emission
limits outside of normal operation
– They clarify that excess emissions are not necessarily a
“violation” of the Clean Air Act
– They provide a defense to third party lawsuits for
excess emissions during SSM conditions
Gas Turbine Startup
- Higher emissions; less efficient operation
SSM Cases
Sierra Club v. PSC Colo., 894 F.
Supp 1455 (D. Colo. 1996)
Sierra Club v. Tri-State Generation
and Transmission, PSC of Colo., Salt
River Project Agricultural
Improvement and Power District,
Pacificorp, and Platte River Power
Authority, No. 96-02368 (D. Colo.
March 19, 2001)
United States v. Exelon Mystic LLC,
No. 04-10213 (D. Mass. Jan. 29,
Grand Canyon Trust v. PSC New
Mexico, No. 02-00552 (D.N.M. Mar.
10, 2005)
Sierra Club v. TVA, No. 02-02279
(N.D. Ala. 2002)
Sierra Club v. Georgia Power, 365
F. Supp. 2d 1297 (N.D. Ga. 2004),
reversed and remanded by 443 F.3d
1346 (11th Cir. 2006), summary
judgment granted for Defendant in
No. 02-00151, 2007 U.S. Dist. LEXIS
100219 (N.D. Ga. Jan. 11, 2007)
Illinois v. S. Illinois Power Co.,
Illinois Pollution Control Board,
PCB No. 04-201 (Feb. 16, 2006)
National Parks Conservation Assoc.
v. Tennessee Valley Authority, No.
00-00547 (E.D. Tenn. 2000)
Biodiversity Conservation Alliance,
et. al. v. Mountain Cement Co., No.
04-00361 (D. Wyo. Nov. 17, 2004)
Citizens for Pennsylvania’s Future v.
Allegheny Energy Supply Co., No.
05-00186 (W.D. Pa. July 13, 2006)
PennFuture v. FirstEnergy Corp.,
No. 07-01412 (W.D. Penn. Oct. 15,
Md. Dept. of Env’t v. Constellation
Power Source Generation, Inc., No.
02-CV-07122918 (Md. Cir. Ct. Sept.
28, 2007)
Sierra Club and Wyoming Outdoor
Council v. PacifiCorp, No. 07-cv042-J (D. Wyo. Feb. 21, 2007)
Conservation Law Foundation, Inc.
and HealthLink, Inc. v. Dominion
Energy New England, Inc., No 1:10cv-11069 (D. Mass. Dec. 21, 2011)
Sierra Club v. Ameren Corp., No. 1;
CV-00408 (E.D. Missouri Mar. 3,
Civil Penalties for Noncompliance
• Federal Civil Penalties
• $37,500 per day, per violation
Privileged and Confidential
Attorney-Client Communication
Case Study: Georgia SSM
• In 2002 Sierra Club brought a citizen suit targeting a power
plant - alleging thousands of violations of the Clean Air Act
over a five year period (all resulted from SSM)
• Excess opacity – continuously monitored in 6-minute
• Court held that Georgia SSM Provision, once proven and
not challenged by Plaintiffs, provided a complete defense
• 11th Circuit Court of Appeals upheld validity of the Georgia
SSM Rule
The Sierra Club Petition
• Filed Petition on June 30, 2011
• Requested that EPA:
– Revoke its prior approval of targeted state SSM rules;
– Issue a “SIP Call” – requiring states to revise their rules
and significantly limit the scope of the SSM provisions,
– Issue a “FIP” – an EPA rule that would take the place of
the current state SSM rules
EPA’s Proposed
• Issued on February 22, 2013
• Proposed to grant Sierra Club’s Petition for 36 states
• Provided only 30 days for public comment (agreed to extend
another 30 days)
• Final Rule due initially September 26, 2013; extended until
June 12, 2014
Impact of EPA’s Proposal
• All excess emissions would be “violations” of
applicable emission limits
• Excess emissions during planned startup and
shutdown would not be exempt
• No affirmative defense may be provided for
startup/shutdown events, making them actionable for
civil penalties and injunctive relief (i.e., an order
preventing the emissions going forward)
Impact of EPA’s Proposal
• Excess emissions resulting from an unavoidable
malfunction would be a violation but a state may
provide a limited affirmative defense to civil penalties
• The defense would not apply to injunctive relief
• In short, the rule would effectively eliminate statebased SSM exemptions, particularly as applied to unit
startup and shutdown
The proposal does not directly impact SSM
provisions in federal New Source Performance
Standards or MACT programs.
-but serious concerns about precedent
Objections To EPA’s Proposal
• EPA failed to review relevant data regarding improved
air quality
• Many SSM events are unavoidable due to technical
limitations of pollution control equipment
• Violates state/federal partnership under CAA
– No consultation with states targeted by SIP Call
• CAA does not prohibit use of SSM exemptions
– Change in EPA’s past position/approvals
– EPA still uses SSM exemptions in Federal rulemakings
Recent EPA Actions
Sept. 6, 2013 – Proposed disapproval of SSM provision in OK SIP submittal
– “inconsistent with Clean Air Act”
– “impermissible”
Dec. 10, 2013 – Proposed disapproval of SSM provision in Clark County, NV
– EPA has “reexamined” its previous policy on SSM
Feb. 13, 2014 – Proposed disapproval of Alabama Visible Emission Rule
– EPA will “assume that a SIP revision that relaxes an existing SIP
requirement ‘would interfere’ with NAAQS attainment…”
– “Any emissions limit must be met on a continuous basis…”
What’s Next?
• Final Rule now due on June 12, 2014
• Proposed SIP Call rulemaking
– Subject to public notice and comment
– Deadline for state action of 12-24 months
– Possible proposed FIP (for states that fail to act by
the deadline)
• Appeals likely
– Stay of the rule pending appeal less likely
– States may have to move forward with rule changes
Randy E. Brogdon
Troutman Sanders
[email protected]
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