EPA Proposes To Eliminate Startup, Shutdown, And Malfunction Affirmative Defenses Under Clean Air Act

The United States Environmental Protection Agency ("EPA") proposed on September 5, 2014 to prohibit excess emissions during periods of startup, shutdown, or malfunction ("SSM") in State Implementation Plans ("SIPs") under the Clean Air Act ("CAA"). EPA concluded that a recent court decision did not even allow EPA to approve the narrowly crafted provisions in SIPs allowing for excess emissions during malfunctions allowed by a previous EPA proposal. If finalized, this proposal means that governmental authorities implementing CAA provisions in 37 states and the District of Columbia would be required to revise existing regulations to remove SSM affirmative defenses.¹

In February 2013, EPA issued a proposed rule finding that in 35 states and the District of Columbia SIPs contained SSM provisions inconsistent with the CAA. This finding was made in response to a Petition for Rulemaking filed with EPA by the Sierra Club on June 30, 2011. The February 2013 proposal concluded