EPA’s Final Startup, Shutdown, and Malfunction (“SSM”) Rule: The Emperor’s New Clothes, Part II

By Michael Krancer
Follow: @MikeKrancer 

The Final EPA Rule under the Clean Air Act (“CAA”) emissions standards for the Startup, Shutdown, and Malfunction (“SSM”) Rule is out.  EPA issued the Final Rule on May 22, 2015 and it’s even worse than when proposed.  I wrote about the Proposed Rule in this blog on August 19, 2013.

Perhaps the worst part about the Rule is that it is a prime example of the undemocratic “sue and settle” dynamic that has sadly become so frequent these days.  The Rule is in response to a petition by Sierra Club and requires 36 states to change their laws—without meaningful input from any of those states.

As was the case when the rule was proposed:

(1) the process behind the Final  Rule is flawed;

(2) the Rule is not based on any documented evidence of environmental or public health concerns;

(3) the Rule is factually and technologically flawed;

(4) the Rule  is legally flawed; and

(5) the Rule  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 Clean Air Act 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 Final Rule goes even further than the Proposed Rule since the EPA now eliminates completely the state’s right to establish SSM events as an affirmative defense to a penalty action.  That’s equivalent to telling the states that they can’t even hear that the radar gun was broken and/or malfunctioning in a speeding case.  EPA conveniently claims that an intervening court case NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), forces it to do this but, of course, that decision related to cement plants and Maximum Achievable Control Technology (MACT), not NAAQS decision and it had nothing to do with State Implementation Plans (“SIP”).

As was the case with the Proposed Rule, the Final Rule is remarkable for its hubristic brush-off 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 so-called “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 Final Rule is as technologically flawed as the Proposed Rule.  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 Final Rule is as silly as making automakers hit their fuel mileage standards during acceleration to a steady speed.  The Final 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 Final Rule is even more legally flawed than the Proposed Rule (by its reliance on NRDC v. EPA to eliminate all defenses in SIPs to SSM emissions exceedances) and will now certainly be challenged.

The EPA Rule does not respect the case law on SSM under the CAA, and the 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 Final 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  Final 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 Final 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 Final Rule will end up creating scarcity and adding unjustified costs.  And it’s an even bigger profit center for the Sierra Club than the Proposed Rule.

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