The EPA’s proposed Clean Air Act (“CAA”) emissions standards for the Startup, Shutdown, and Malfunction (“SSM”) Rule, which was issued on February 22, 2013 (78 Fed. Reg. 12460) and is set to be finalized by the EPA in September, is fundamentally flawed.  Just last week, it was reported that “environmental justice advocates” met with Obama Administration officials to push the Rule as an “environmental justice” measure.  The proposed Rule is the EPA’s response to a petition filed by the Sierra Club in 2011, and requires a whopping 36 states and jurisdictions to revise their State Implementation Plans (“SIPs”) with respect to their individual SSM provisions.

The proposed Rule is a solution in search of a problem.  Even worse:

  1. the process behind the proposed Rule is flawed;
  2. it is not based on any documented evidence of environmental or public health concerns;
  3. it is factually and technologically flawed;
  4. it is legally flawed; and
  5. it has nothing to do with environmental justice, but rather is a serious disservice to environmental justice.

SSM events, by definition, are very short in duration.  There is not a single shred of documented evidence that emissions from any SSM event have resulted in an exceedance of a National Ambient Air Quality Standard (“NAAQS”) for any parameter anywhere.  There is likewise no evidence that any SSM event has caused a threat to the environment or to public health and safety.

The proposed Rule was promulgated in an undemocratic and non-transparent fashion.  It was the process of the “sue and settle” dynamic.  The states—who are the most directly impacted by the proposed Rule—never had a seat at the table while the EPA and Sierra Club entered into this private “settlement.”  Consequently, many states were rightfully offended by this running roughshod over the principle of “cooperative federalism” that the CAA requires.  Just recently, the D.C. Circuit court took the EPA to the woodshed for violating the “cooperative federalism” provisions of the CAA in the case of EME Homer City Generation v. EPA, 696 F.3d 7, 11 (D.C. Cir. 2012).  Adding to the unfairness, while the EPA and Sierra Club ruminated over this “settlement” for two years, the EPA gave the states and the rest of the public only 30 days to comment on the 80-page proposed Rule.  The EPA later extended the time, but not by enough.

The Rule is technologically flawed for various reasons.  First and fundamentally, SSM events are beyond the control of the operator.  Moreover, with respect to Electric Generating Units, the EPA is wrong that startup and shutdown events are “planned.”  Also, emissions control equipment does not, and cannot, run at full efficiency during startup and shutdown.  By way of example, the EPA’s proposed rule is as silly as making automakers hit their fuel mileage standards during acceleration to a steady speed.  The proposed Rule also compromises worker safety because there are increased dangers of fire and other mishaps during startup and shutdown should emissions control equipment be forced online too early.

The Rule is also legally flawed and will certainly be challenged after it becomes final.  The EPA does not respect the case law on SSM under the CAA, and its proposed Rule seems to restrict the state’s discretion on SSM more than is allowed by the case law under the CAA.

Finally, despite the lip service, the proposed Rule is no “environmental justice” provision.  As mentioned before, there is no evidence that SSM events cause any NAAQS exceedances or adverse environmental or public health impacts.  The proposed Rule will do little more than open the door to private lawsuits for money damages—where there is no environmental or public health threat.  In that regard, this proposed Rule is more about the Sierra Club’s long-term financial planning than it is about environmental justice.  Affordable and available electricity and products are fundamental tenants of environmental justice.  This proposed Rule will end up creating scarcity and adding unjustified costs.  It will, however, create a profit center for the Sierra Club.