Seventeen States Sue EPA for Mandating SIP Startup, Shutdown, Malfunction Changes

The attorneys general of 17 states are suing the Environmental Protection Agency (EPA) for invalidating agency-approved state implementation plans (SIPs) governing emissions from power plant startup, shutdown, and malfunction (SSM) operations.

The states have asked a federal court to review the EPA’s June-issued final rule, which deems SIP provisions concerning SSM operations in 36 states (applicable in 45 statewide and local jurisdictions) as “substantially inadequate to meet [Clean Air Act] requirements.” The rule issued a “SIP call” directing affected states to correct SSM provisions to reflect recent court decisions, which have voided exemptions previously adopted and approved into SIPs many years ago.

Exemptions removed include affirmative defense provisions, which, owing to the April 2014 federal court decision in NRDC v. EPA, can no longer insulate generators from monetary penalties for Clean Air Act violations that result from facility startup, shutdown, and equipment malfunction.

The rule requires states to submit revised SIPs by November 2016.

The EPA says it issued the final rule in response to a petition for rulemaking filed by the Sierra Club.

Florida Attorney General Pam Bondi said in an Aug. 11 statement that the EPA’s final rule is a “heavy-handed federal overreach [that] threatens to upend a system that the EPA has approved multiple times.”

She said that the EPA’s “imprudent rush to settle the matter has led the agency to adopt an illegal final rule that is in conflict with the Clean Air Act and imposes on Florida’s right to determine the most effective strategy for achieving air quality standards.”

States suing the EPA are: Alabama, Arizona, Arkansas, Delaware, Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Ohio, Oklahoma, South Carolina, South Dakota, and West Virginia.

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)