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Home My WebLink AboutAgenda Item V-1_SSM SIP Call UpdateDepartment of Environmental Quality Startup, Shutdown, and Malfunction SIP Call Update Air Quality Committee Meeting –May 10, 2023 Startup, Shutdown, and Malfunction (SSM) SIP Call Update 2 Department of Environmental Quality Background •2011: Sierra Club filed a petition asking EPA to find state implementation plans (SIPs) containing startup, shutdown, and malfunction (SSM) provisions inadequate. •May 2015: EPA announced its policy that SIP provisions containing exemptions from emission limits during SSM events are inconsistent with the Clean Air Act and issued a SIP Call to 36 states or local air programs… including NC. •August 2015: States challenge SIP Call in the DC Circuit. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 3 Department of Environmental Quality Environ Comm FL Elec Power v. EPA, No. 15-1239 (D.C. Cir.) (and consolidated cases): 2015 SSM SIP Call challenge. •Issues (some of them) •Whether a finding of substantial inadequacy requires considering impact on NAAQS attainment •Whether SSM provisions are inconsistent with the CAA notwithstanding general duty provisions or other requirements that apply at all times •Whether director discretion provisions authorize states to unlawfully modify SIPs without following CAA procedures •Status: •Briefing complete as of October 2016 •Case held in abeyance from April 2017 through January of 2022 •Oral argument held on March 25, 2022. Awaiting decision. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 4 Department of Environmental Quality •2016: EMC amended and adopted rules (15A NCAC 02D .0535 and .0545) with contingent applicability language based on outcome of pending litigation in response to the 2015 SIP Call with a future effective date of 2018 in the history note •2018: EMC took comment on and revised the effective date to on effective date of EPA approval into North Carolina’s State Implementation Plan given a court decision had not been rendered, and filed the revised effective date with OAH Startup, Shutdown, and Malfunction (SSM) SIP Call Update 5 Department of Environmental Quality •2020 •January: EPA Region 6 obtained approval to deviate from national policy and withdraws Texas SIP Call. •April: Region 4 obtained approval to deviate from national policy and withdraws NC SIP Call. •July: EMC readopted 02D .0535 (effective 11/1/2020) as part of the Group 6 rule readoption package and submitted it to EPA for approval •October: EPA withdrew 2015 policy and proposed to address SSM provisions on a “case by case basis in light of the SIP as a whole.” •October: EPA Region 7 withdrew Iowa SIP Call. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 6 Department of Environmental Quality Environmental groups file suit challenging EPA’s withdrawal of SIP Calls for: •North Carolina –Case No. 20-1229 (D.C. Cir. June 2020) •Texas –Case No. 20-1115 (D.C. Cir. Apr. 2020) •Iowa –Case No. 21-1022 (D.C. Cir. January 2021) April 2021: DAQ submitted readopted 02D .0535 effective 11/1/2020 (part of Group 6 readoption package) to EPA for approval September 2021: EPA reinstates 2015 policy In all cases, the Court granted EPA’s motion for voluntary remand without vacatur to allow it to reconsider the SIP call withdrawals in light of its reinstatement of the 2015 SSM policy. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 7 Department of Environmental Quality Sierra Club et al. v. EPA, Case No. 4:21-cv-6956 (N.D. Ca): •NGOs filed suit to compel EPA to (1) make findings of failures submit SIPs in response to the 2015 SIP Call and (2) take action to approve or disapprove SIPs that were submitted in response to the 2015 SIP Call. •On January 12, 2022, EPA published findings of failure to submit for 12 states and districts. •On June 27, 2022, the court entered a consent decree establishing various deadlines for EPA to take action on pending SIP submittals. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 8 Department of Environmental Quality •2022 •August: DAQ withdrew 2016 SSM SIP Call submittal •2023 •January: DAQ coordinated with OAH on close out of Codifier file on .0535 obsolete delayed effective date and current history note •January: DAQ withdrew request for approval of rules in Group 6 submittal with SSM provisions not considered approvable by EPA including 02D .0535 and .1423 Startup, Shutdown, and Malfunction (SSM) SIP Call Update 9 Department of Environmental Quality •2023 •February: EPA proposed to reinstate its 2015 SIP Call for NC and finding of substantial inadequacy with respect to SSM provisions in North Carolina’s SIP. •15A NCAC 02D .0535(c) and (g) and .1423(g) •Revised rules, if needed, proposed to be due to EPA 18 months after EPA final action (final expected 6-12 months after proposal) •April: DAQ submitted comments on this proposal •DAQ respectfully disagreed with EPA’s determination that NC’s SIP is substantially inadequate and that NC’s SSM provisions are inconsistent with the Clean Air Act. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 10 Department of Environmental Quality •DAQ comments •EPA did not consider SIP as a whole and, as a result, did not account for the ways in which other provisions in the SIP work to ensure attainment and maintenance with the NAAQS, even during SSM events. •EPA improperly failed to account for the wealth of available evidence demonstrating that North Carolina’s implementation of its SSM provisions has not impeded the State from achieving compliance with all NAAQS throughout all areas of the State. •EPA has erroneously determined that implementation of North Carolina’s “director’s discretion provision” involves the unlawful modification of North Carolina’s SIP. Properly construed, this provision simply establishes a framework for when and how the Director determines whether an SSM event constitutes a violation of the applicable rule. •EPA is incorrect that the subject SIP provisions are inconsistent with the text of the Clean Air Act, which accords discretion to the States to determine “whatever mix” of requirements are “necessary or appropriate” to attain and maintain the NAAQS. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 11 Department of Environmental Quality •DAQ comments •DAQ supported the recent approach taken by EPA to approve SSM rules submitted by New Mexico, Missouri, and Oklahoma where EPA made it clear that removing SSM provisions from the SIP, while retaining them for state law purposes only, is an acceptable means of satisfying the SIP Call. •DAQ supported providing states the maximum time allowed under the CAA to respond to allow for any needed rulemaking in the event the SIP call is finalized. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 12 Department of Environmental Quality •Considerations… •SSM events are infrequent. •NC’s SSM rule only applies to a subset of sources. It does not apply to sources subject to NSPS, MACT, or NESHAPs. •NC’s SSM rule establishes concrete factors the Division must consider when determining if excess emissions are the result of a malfunction, or start-up or shut-down conditions. Startup, Shutdown, and Malfunction (SSM) SIP Call Update 13 Department of Environmental Quality •Next Steps: •Submit request for approval of current 02D .0535 readopted 11/1/2020, except paragraphs .0535(c) and (g) and .1423(g), to EPA •Impact of .0535(c) and (g) and .1423(g) not being approved: •Violations caused by SSM events will be subject to federal enforcement and third party citizen suits •Continue to follow Court and EPA activity •Consider potential options should the SSM SIP Call be reinstated for NC •Provide periodic updates to AQC as related activity evolves Contacts Department of Environmental Quality Joelle Burleson Planning Section NC Division of Air Quality 919 707 8720 office Joelle.Burleson@ncdenr.gov 14 Katherine Quinlan, EIT Rule Development Branch Supervisor NC Division of Air Quality 919 707 8702 office Katherine.Quinlan@ncdenr.gov Mike Abraczinskas, EIT, CPM Director NC Division of Air Quality Michael.Abraczinskas@ncdenr.gov 919-707-8447 Department of Environmental Quality 15