October 10, 2022

Petition to Remove SSM Exemptions from NSPS

On September 13, 2022, a coalition of community groups and environmental organizations petitioned EPA to eliminate the startup, shutdown, and malfunction (SSM) exemptions from regulations implementing the CAA Section 111 new source performance standards (NSPS) in 40 CFR Part 60. The petitioners claim the SSM exemptions under NSPS violate the CAA's statutory language, rendering them unlawful. They also claim that fenceline communities near large industrial facilities are disproportionately negatively impacted, and because minority and low-income groups often live in these neighborhoods, it raises environmental justice issues. The petition makes not only a legal argument but also an economic one. Data from 2020 is cited, showing facilities in the state of Texas released over 46 million pounds of air pollutants during SSM events, which, if controlled, could save the state $241 million in health and other costs annually.

The NSPS SSM exemptions began from an industry petition and were first promulgated in 1977. [42 FR 57125] SSM exemptions were also incorporated into the 40 CFR Part 63 regulations implementing the CAA Section 112 air toxics program, but in 2008 these were found to violate the statute. [Sierra Club v. EPA 551 F.3d 1019, D.C. Cir. 2008] The statute requires emission standards to limit emissions of air pollutants on a continuous basis, and the court found the SSM exemptions disrupt this continuity. Furthermore, the court decided the "general-duty" requirement of operating an affected facility and associated air pollution control equipment in a manner consistent with good air pollution control practices is not a valid performance standard. The petition claims this finding regarding CAA Section 112 can and should be applied to CAA Section 111.

In the past few years as EPA has performed NSPS technology reviews, it has occasionally removed the SSM exemption acknowledging CAA Section 111 requires a continuous system of emission reduction. Because review of standards often lags behind the 8-year statuory mandate, and can be inconsistent, relying on this process to remove SSM exemptions would likely take decades. Thus, the petitioners requested EPA to eliminate all SSM exemptions from the NSPS through a single rulemaking. The agency has not responded to the petition at this time.

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