Law360, New York (July 19, 2016, 4:40 PM ET) -- Most states currently provide for special treatment of excess emissions under the Clean Air Act (CAA) during periods of startup, shutdown or malfunction (SSM) in their state implementation plans (SIPs). This will soon have to change.

About a year ago, the U.S. Environmental Protection Agency’s final action required 36 states to revise their SIPs to eliminate the so-called “affirmative defense” for excess emissions during SSM, establishing a Nov. 22, 2016, deadline. 80 Fed. Reg. 33840 (June 12, 2015). With little guidance from the EPA, responding states are confronted with a myriad of choices, ranging from removing affirmative defense provisions from their SIPs entirely, retaining affirmative defense provisions for state-only emissions limits, replacing affirmative defense provisions with so-called “discretionary enforcement” provisions, or somehow revising existing affirmative defense provisions so they pass muster with the EPA.

With a November deadline looming, the 36 states are busy this summer figuring out how to respond to the EPA’s SSM SIP call. Although 19 states (along with a coalition of energy companies, utilities and industry organizations) have recently asked the D.C. Circuit to strike down the EPA’s SSM SIP call, that challenge won’t be heard and decided in advance of the November deadline. Here is where things stand across the country:

EPA Region 4  Florida

Florida’s current Rule 62-210.700 allows for generally applicable automatic exemptions for emissions during startup, shutdown and malfunction. Like Michigan (see infra), Florida has responded to the SIP call by carving out emission limits imposed by state law, proposing to allow excess emissions from SSM only for emissions limits that have not been incorporated into the state implementation plan, except where caused by poor maintenance. The proposed revised Rule 62-210.700 provides (additions in italics):  

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. Excess emissions that are caused entirely or in part by poor maintenance, poor operation or any other equipment or process failure that may reasonably be prevented during startup, shutdown or malfunction shall be prohibited.

2. After July 1, 2018, Subsection 62-210.700(1), F.A.C., shall not apply to the emission limits in Chapter 62-296, F.A.C., which have been incorporated into the state implementation plan for the state of Florida, identified in 40 CFR Part 52, Subpart K.

3. After July 1, 2018, Subsection 62-210.700(1), F.A.C., shall remain in effect for emission limits in Chapter 62-296, F.A.C., which have not been incorporated into the state implementation plan for the state of Florida.

A notice of rule development was published on June 8, 2016, and a rule development workshop will be noticed in the Florida Administrative Register, likely in the coming weeks.

Florida has also added a new proposed rule — Rule 61-210.710 Emission Limits During Transient Modes of Operations — that would allow a facility to request unit-specific secondary emissions limit permits that would apply during specified “transient modes of operation,” i.e., startup, shutdown or fuel switching. The new proposed rule places a heavy burden on industry, requiring a facility looking to obtain a secondary permit to “maintain [on a unit-by-unit basis] contemporaneous records adequate to demonstrate that the facility has adhered to those best practices” for minimizing the extent and duration of emissions and provide documentation sufficient to meet a number of new stringent requirements.

For example, under the proposed rule the facility would need to “[d]emonstrate that compliance with the otherwise applicable primary emission limit ... is technically infeasible during the transient mode of operation ... which must include monitoring data, parametric data or operational data collected during the transient mode of operation sufficient to characterize the range of emissions that occur, or are projected to occur, during the transient mode of operation.”

EPA Region 5  Michigan

Michigan’s current Rule 916 provides an automatic “affirmative defense” for emission violations that occur during startup or shutdown (but not malfunction) that may be used to defeat enforcement actions for fines and penalties. Michigan’s proposed Rule 916 revision eliminates the use of an affirmative defense, except for would-be violations of certain state-only emissions rules (additions in italics):

Rule 916. (1) The person operating a source with emissions in excess of an applicable emission limitation due to startup or shutdown may claim an affirmative defense to an enforcement proceeding for violations of [state] R. 336.1224 to R 336.1228 and R 336.1901, excluding a judicial action seeking injunctive relief, if the person has complied with the reporting requirements of R 336.1912 and has demonstrated all of the following: ...

For example, Michigan Rule 336.1901, to which the affirmative defense would continue to apply, prohibits emissions of an air contaminant in such quantities that cause injury to human health or unreasonable interference with the comfortable enjoyment of life and property. Allowing an affirmative defense for state-only emissions rules is arguably the least burdensome alternative for industry that would be acceptable to the EPA in response to the SIP call. However, it is unclear what practical benefit a state-only affirmative defense would have in the (seemingly likely) event where both federal and state emissions standards are triggered during SSM.

Notably, the SIP call did not implicate Michigan’s discretionary rule covering emissions violations during startups, shutdowns and malfunctions — Rule 915 — which allows the department to use “enforcement discretion” in resolving emissions violations in such circumstances where very specific evidence is provided to the department concerning the excess emissions event.

Michigan’s public hearing was held on May 2, 2016, and the comment period is now closed.

EPA Region 5  Indiana

Indiana’s current Rule 1-6-4(a) allows for discretionary exemptions from emissions limitations during malfunctions if the source demonstrates that a number of conditions are met, but the rule does not specify to whom or in what forum such demonstration must be made, and if allowed to be made in an enforcement context, the provision could be interpreted as providing an “affirmative defense,” as the EPA found in its SIP call. Indiana has responded to the SIP call by completely eliminating any exemptions for malfunctions (additions in italics):

Sec. 4. (a) Facility Source owners or operators shall be responsible for operating operateand maintaining maintain all emission control equipment and combustion or process equipment or processes in compliance with all applicable rules. Emissions temporarily exceeding the standards which are due to malfunctions of facilities or emission control equipment shall not be considered a violation of the rules provided the source demonstrates that: (1) All reasonable measures were taken to correct, as expeditiously as practicable, the conditions causing the emissions to exceed the allowable limits, including the use of off-shift and overtime labor, if necessary. (2) All possible steps were taken to minimize the impact of the excessive emissions on ambient air quality which may include but not be limited to curtailment of operation and/or shutdown of the facility. (3) Malfunctions have not exceeded 5 percent, as a guideline, of the normal operational time of the facility. (4) The malfunction is not due to the negligence of the operator.

The proposed rule changes are up for public hearing on Aug. 10, 2016.

EPA Region 6  Louisiana

Louisiana’s current Rule 33:III.2201(C)(8) provides that certain sources are automatically exempted from emissions limitations during SSM. Louisiana’s rules also contain discretionary exemptions from otherwise applicable sulphur dioxide (LAC 33:III.1507) and nitric acid (LAC 33:III.2307) emissions limitations during startups, shutdowns and “upsets.” Louisiana has responded by proposing to repeal the discretionary exemptions for sulphur dioxide and nitric acid. With respect to the automatic exemptions in LAC 33.III.2201(C)(8), the state has proposed a new rule allowing the owner/operator of an affected point source to comply either with the normal emissions limitations at all times (including periods of startup and shutdown) or with newly established “work practice standards” designed to minimize emissions during periods of startup and shutdown.

The proposed rule changes are up for public hearing on July 27, 2016.

EPA Region 8  Colorado

Colorado’s current Rule 1001-2(II.E.) and 1001-2(II.J) provides affirmative defenses to qualifying sources during malfunctions and periods of startup and shutdown, respectively, provided sources make efforts to minimize excess emissions during SSM and notify the state agency in a timely manner of excess emissions. Unlike other states with so-called “automatic exemptions,” Colorado’s affirmative defenses are unavailable for claims for injunctive relief and are only granted on a case-by-case basis after sources satisfy rigorous demonstration and notification requirements.

Colorado has already responded directly to the EPA by proposing to revise Sections II.E. and II.J. by adding language to clarify that the affirmative defenses are not available in federal court proceedings unless the court, in considering the penalty factors in Section 113 of the CAA and exercising its discretion to assess civil penalties, decides to recognize or consider such affirmative defense or decides to take into consideration some or all of the factors described in Sections II.E. and II.J.

The state received a response from the EPA in November 2015 stating that the EPA was concerned that placing the decision as to whether or not an affirmative defense applies within the discretion of the federal court may conflict with the court’s obligation to consider the mandatory statutory penalty factors enumerated in section 113 of the CAA, fail to put sources fairly on notice as to the possible penalty consequences of noncompliance, and may practically interfere with enforceability, given that it could create additional (and unnecessary) issues that parties to an enforcement action might have to brief for a court to decide. The EPA suggested that Colorado just instead remove the affirmative defense provision entirely from the SIP.

The EPA’s letter was received only a week prior to the Nov. 19, 2015, Colorado Air Quality Control Commission discussion of its proposed revisions. It is unclear how Colorado will respond to the EPA’s criticisms of its “narrowly tailored” revised affirmative defense approach, or if the state will follow the EPA’s “advice” and just scrap the provision entirely from its SIP.

The quick status review of how individual states are responding to the EPA’s SSM SIP call suggests that while the states are working to comply with the EPA mandate, at the same time many are attempting to build in some flexibility where there are excess emissions as a result of SSM. It remains to be seen whether these flexible approaches will be acceptable to the EPA, or, if like Colorado, other states will be sent back to the drawing board come November.