On August 11th, 2015, 17 state Attorneys General filed a lawsuit against the U.S. Environmental Protection Agency (EPA), challenging the EPA’s rejection of the automatic industry exemption for air pollution excesses during periods of startup, shutdown and malfunction (SSM).
In their petition, the 17 states allege that the EPA‘s rule – published in June 2015 – draws the incorrect conclusion that State Implementation Plans (SIPs) protecting industrial facilities from penalties for air quality standards violations that occur during SSM are inadequate. The rule had also required 36 states to remove the automatic exemption in their SIPs within the next 18 months.
The lawsuit against the rule was led by the Attorneys General of the following states:
- South Carolina,
- South Dakota,
- West Virginia,
and North Carolina’s Department of Environment and Natural Resources.
The EPA’s SSM rule arose out of a 2011 petition filed by the Sierra Club, which argued that the SSM affirmative industry defense constitutes an impermissible loophole that enables facilities to exceed their Clean Air Act permit emission limits.
The EPA now faces legal opposition to the SSM rule from the states, who contend that the rule violates state autonomy rights under the Clean Air Act and impedes air quality progress by altering long-standing SIP provisions.
EHS Legalist Red-on-line
Sharon Montazeri, Final Rule: EPA Removes Automatic Exemption under Clean Air Act for Excess Emissions During Startup, Shutdown, and Malfunction, Red-on-line USA, May 29, 2015.
State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction, Prepublication Version, May 22, 2015.