On Feb. 12, 2013, the U.S. EPA proposed a ruling that would ensure states have plans in place requiring industrial facilities across the country follow air pollution rules during times when the facility is starting up, shutting down or when a malfunction (SSM) occurs. Air pollution emitted during these periods may adversely impact the health of populations nearby and contribute to smog and other problems in communities that are further downwind.
To comply with standards set forth in the Clean Air Act of 1970, individual states are required to submit for EPA approval a State Implementation Plan (SIP) outlining rules and requirements necessary to maintain air quality standards. In a recent review of the individual SIPs, the Sierra Club identified 39 states that had exemptions, vague outdated language or overly flexible conditions regarding emissions during SSM activities. Examples of SSM activities include roof landings, tank degassing and start-up/shutdown of process units, or equipment malfunctions. While most states have traditionally required these emissions be reported, very few have required they be authorized through permitting. As a result, companies looking to authorize these previously excluded SSM activities may find permitting problematic if emissions totals exceed levels triggering federal New Source Review.
In addition to required authorizations for SSM activities, EPA revisions will also include changes to its policy regarding affirmative defense. Under affirmative defense, EPA has historically allowed facilities to escape penalties during scenarios where unavoidable malfunction results in the release of excess emissions. Under the proposed rules, 17 states, including California and Texas, will be required to revise their SIPs to remove the use of these affirmative defenses. The impact of this provision’s removal will result in facilities being subject to administrative penalties imposed by regulators as well as the possibility of citizen suits and civil penalties.
By allowing facilities to exceed their normal operating limits during SSM, industry has been allowed to emit certain hazardous substances such as nitrogen oxide, sulfur dioxide, PM-10s (particulate matter), volatile organic compounds, benzene and others. The curtailing of these emissions by EPA will have a broad range of practical implications on industry. Of particular concern will be the use of emissions control equipment during these periods of start-up and shutdown. Many facilities have restrictions placed on them requiring minimum operating temperatures and efficiencies that will be difficult or impossible to achieve during these interim periods. Avoiding penalties during these spans may require facilities utilize control equipment designed specifically for periods of start-up and shutdown.
The Sierra Club sued and settled with the EPA by accepting 36 states would be required to revise their SIPs to remove exemptions allowing for emissions generated during SSM activities with an additional 17 states also required to remove provisions allowing for affirmative defense. The general EPA guidance is due to be published May 5, 2015. After their guidance is published, each of the designated states will have up to 18 months to not only revise their SIPs, but be in 80-percent compliance by the end of the 18-month period.
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