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EPA Removes Exemptions for Emissions During Startup, Shutdown and Malfunctions

On May 22, 2015, USEPA issued a final rule that clarifies their position on exemptions and affirmative defenses to emissions during startup, shutdown and malfunction events. (“SSM”). This rule is a response to a petition filed by Sierra Club to require EPA to invalidate certain provisions of state implementation plans (“SIPs”), including Ohio’s, following the D.C. Circuit’s recent decision that Clean Air Act (“CAA”) emissions limits must apply “continuously.”[1]

In this rule, EPA has issued a SIP call that invalidates those provision in state SIPs that are no longer considered consistent with the CAA. In Ohio, this SIP Call invalidates 5 distinct regulatory provisions[2], including OAC 3745-15-06(A)(3), which allows for sources, on approval from the Ohio EPA, to shut down control devices for maintenance without shutting down the source.[3] This provision is essential in reducing overall emissions, as it helps businesses avoid emissions events that typically occur during malfunctions and unplanned shutdowns plus re-start of an entire source.

As a result of the SIP call, Ohio EPA is required to submit a new SIP for approval that removes the offending provisions. However, Ohio EPA is not required to impose numeric emissions limitations during SSM events. In this Rule, USEPA clarified its position that alternative emissions limits (“AELs”), such as work-practice standards, may be used to provide for different limitations during SSM events, while providing a specific and enforceable limit for the government (and citizen groups) to review. These new rules must be submitted to USEPA within 18 months.

In order to avoid operations disruptions, owners and operators should prepare to assist Ohio EPA in developing informed regulations for their operations addressing startup, shutdown and malfunction events.

The full text of the SIP Call Rule can be found HERE

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This blog post may be reproduced, in whole or in part, with the prior permission of Dave Bell Law and acknowledgement of its source. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

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[1] Sierra Club v. Johnson, 551 F.3d 1019 (D.C. Cir. 2008).

[2] OAC 3745-06(A)(3); 3745-06(C); 3745-17-07(A)(3)(c); 3745-17-07(B)(11)(f); and OAC 3745-14-11(D).

[3] See, OAC 3745-06(A)(3)(“In cases where a complete source shutdown may result in damage to the air pollution sources or is otherwise impossible or impractical, the owner or operator may request authorization to continue operating the sources during the scheduled maintenance of air pollution control equipment. Any such request shall be made in a written report at least two weeks prior to the planned shutdown of the air pollution control equipment. The director shall authorize the shutdown of the air pollution control equipment if, in his judgment, the situation justifies continued operation of the sources.”)

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