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Home > Issues > Environmental > Startup, Shutdown, Malfunctions |
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Startup, Shutdown, MalfunctionsWhat's New
NPRA Position NPRA recognizes that the failure by a facility owner or operator to use good engineering practice or to provide adequate maintenance or training should not provide an enforcement defense. EPA must recognize, however, that refineries and petrochemical plants are complex installations. There will always be incidents -- although reasonably expected to be infrequent -- that are unforeseen or beyond the operator's control. Therefore, the startup, shutdown, malfunction (SSM) enforcement defense must be preserved. NPRA supports EPA's revision to the SSM provisions concerning providing SSM plans to the public included in its May 30, 2003, final rule. The final rule which requires all requests for SSM plans to be made by the state or other permitting authority to the facility provides a balance between the public's desire to review the SSM plans and placing unreasonable burden on the facility to provide the plan. Issue Brief The Clean Air Act recognizes limited enforcement defense for emissions related to facility startup, shutdown, and malfunction (SSM). The intent of the defense is to cover excess emissions caused by a sudden unavoidable occurrence beyond the control of the owner or operator, which couldn't have been foreseen. Our members have observed an apparent trend by EPA toward the position that few, if any, excess emissions are unforeseen or beyond the operator's control. As a result, there is a lack of certainty about when excess emissions are truly exempt from enforcement. Recently, there has been an increased focus on the part of some state enforcement officials on this issue. In addition, in its May 30, 2003 112(j) MACT Hammer final rule, EPA also clarified a facility’s responsibility to provide the public with a copy of the facility’s SSM plan. Additional Information for NPRA Members In September 1999, Steven A. Herman, then EPA Assistant Administrator for Enforcement and Compliance, signed a memorandum to Regional Administrators with the subject: "State Implementation Plans (SIPs): Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown." The policy statement (guidance document) purports to be a re-statement of EPA policy as stated in memoranda from former Assistant Administrator Kathleen Bennett. The 1999 policy document reads, "As EPA stated in its 1982 memorandum, because excess emissions might aggravate air quality so as to prevent attainment or interfere with maintenance of the ambient air quality standards, EPA views all excess emissions as violations of the applicable emission limitation. Nevertheless, EPA recognizes that imposition of a penalty for sudden and unavoidable malfunctions caused by circumstances entirely beyond the control of the owner or operator may not be appropriate. Accordingly, a State or EPA can exercise its 'enforcement discretion' to refrain from taking an enforcement action in these circumstances." EPA was sued over the guidance document by the Clean Air Implementation Project and the National Environmental Development Association's Clean Air Regulatory Project. On July 19, 2001, EPA published in the Federal Register notice of a settlement agreement between the two litigants and EPA. The proposed agreement called for EPA to issue a clarifying memorandum in return for dismissal of the suit. The clarifying memorandum stated that the guidance document provides guidance to the states and EPA regarding SIP provisions, and "was not intended to alter the status of any existing malfunction, startup or shutdown provision in a SIP that has been approved by EPA." It also states that the guidance was not intended to affect existing permit terms or conditions regarding malfunctions, startups and shutdowns. Additional information can be found at |