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September 23, 2022
Petition to eliminate SSM 'loopholes'

On September 13, 2022, a group of environmental and community advocacy organizations petitioned the EPA to close “loopholes” in the regulations implementing the Clean Air Act (CAA) that “allow facilities like oil refineries, chemical plants, and incinerators to disregard emission standards, stop reporting their pollution, and avoid fines or other consequences for excess pollution they emit during startup, shutdowns, and malfunctions (SSM),” states an Earthjustice press release.

The CAA definitions for these events are:

  • Start-up—The setting into operation of a regulated source (for example, a chemical manufacturing process unit or a reactor, an air oxidation reactor, a distillation unit, a storage vessel after emptying and degassing) and/or equipment. Start-up includes initial start-up, operation solely for testing equipment, the recharging of equipment in batch operation, and transitional conditions due to changes in product for flexible operation units.
  • Shutdown—The cessation of operation of a regulated source (for example, a chemical manufacturing process unit or a reactor, an air oxidation reactor, a distillation unit) and equipment or the emptying and degassing of a storage vessel. Shutdown is defined here for purposes including, but not limited to, periodic maintenance, replacement of equipment, or repair. Shutdown does not include the routine rinsing or washing of equipment in batch operation between batches.
  • Malfunction—Any sudden, infrequent, and not reasonably preventable failure of air pollution control equipment, monitoring equipment, process equipment, or a process to operate in a normal or usual manner that causes, or has the potential to cause, the emissions limitations in an applicable standard to be exceeded. Failures that are caused in part by poor maintenance or careless operation are not malfunctions. Malfunctions that do not affect a regulated source are not malfunctions for purposes of SSM.

The groups seek to eliminate CAA Section 111 exemptions, which establish “standards of performance” for new and modified stationary sources of air pollution. These standards are commonly referred to as New Source Performance Standards (NSPS) and are regulated under 40 Code of Federal Regulations (CFR) 60. Pollutants regulated by this section include particulate matter (PM), sulfur dioxide (SO2), nitrogen oxides (NOx), carbon monoxide (CO), volatile organic compounds (VOCs), hydrogen sulfide (H2S), dioxins/furans, fluorides, and sulfuric acid mist.

Industries operating under the NSPS include chemical manufacturing, petroleum refining, oil and gas production, fuel combustion, ferrous metals processing, and battery manufacturing.

“The plain text of the Act requires EPA to promulgate standards of performance for new stationary sources that are continuous,” states the petition. “Yet EPA has not done this. Instead, EPA has, throughout its regulations implementing section 111 of the Act, carved out blanket exemptions from standards of performance during SSM events. As the D.C. Circuit held in Sierra Club v. EPA, … SSM exemptions fail to meet the plain text requirement of the Act for continuous application of emissions standards. Nevertheless, at least 23 section 111 subparts contain unlawful loopholes that exempt polluters from standards of performance during SSM events. … EPA must act swiftly to remove all illegal SSM exemptions contained in subparts implementing section 111 of the [CAA]. Elimination of these provisions is necessary to bring EPA’s regulatory regime into compliance with the Act, and to advance the racial and environmental justice priorities of the Biden administration by ‘hold[ing] polluters accountable, including those who disproportionately harm communities of color and low-income communities.’”

The counterargument is that the NSPS must be possible, advises Mitchell, Williams, Selig, Gates & Woodyard PLLC. “Various stationary sources cannot literally achieve a particular emission limit or standard during periods of startup, shutdown, and malfunction. As a result, to impose a standard on such stationary sources during these periods would violate Section 111 of the [CAA].”

The groups involved in the petition are 350 New Orleans, Air Alliance Houston, the Alliance for Affordable Energy, the Clean Air Task Force (CATF), the Deep South Center for Environmental Justice, Downwinders at Risk, Earthjustice, Environment Texas, the Environmental Integrity Project (EIP), Green Army, Healthy Gulf, the Ironbound Community Corporation, the Natural Resources Defense Council (NRDC), RESTORE, RISE St. James, the Sierra Club, and the Southern Environmental Law Center (SELC).

The petition requests a response from the EPA within 180 days and states litigation will be considered as a next step in the absence of an affirmative response from the Agency.

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