EPA OVERREACH?
GEORGIA’S STARTUP, SHUTDOWN,
AND MALFUNCTION RULE
PRESENTED BY
Randy Brogdon, Partner
Troutman Sanders LLP
600 Peachtree Street, NE
Suite 5200
Atlanta, GA 30308-2216
404.885.3147
randy.brogdon @troutmansanders.com
Georgia Environmental Conference
Jekyll Island, GA
August 22, 2013
Background: SSM Provisions
• Allow emissions in excess of permit limits during,
or resulting from, unit startup, shutdown and
malfunctions under certain circumstances
• Most have been on the states’ books for decades
and were approved by EPA as part of State
Implementation Plan (SIP) submittals under the
Clean Air Act
• Not specific to any particular industry/pollutant
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Background: SSM Provisions
• Why SSM provisions are important:
– Sources may not be able to meet applicable emission
limits outside of normal source operation
– They clarify that excess emissions are not necessarily a
violation of the Clean Air Act
– They provide a defense to third party lawsuits for
excess emissions during SSM conditions
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The Georgia SSM Rule
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SSM Cases
•
•
•
•
•
Sierra Club v. PSC Colo., 894 F.
Supp 1455 (D. Colo. 1996)
Sierra Club v. Tri-State Generation
and Transmission, PSC of Colo., Salt
River Project Agricultural
Improvement and Power District,
Pacificorp, and Platte River Power
Authority, No. 96-02368 (D. Colo.
March 19, 2001)
United States v. Exelon Mystic LLC,
No. 04-10213 (D. Mass. Jan. 29,
2004)
Grand Canyon Trust v. PSC New
Mexico, No. 02-00552 (D.N.M. Mar.
10, 2005)
Sierra Club v. TVA, No. 02-02279
(N.D. Ala. 2002)
•
•
•
•
Sierra Club v. Georgia Power, 365
F. Supp. 2d 1297 (N.D. Ga. 2004),
reversed and remanded by 443 F.3d
1346 (11th Cir. 2006), summary
judgment granted for Defendant in
No. 02-00151, 2007 U.S. Dist. LEXIS
100219 (N.D. Ga. Jan. 11, 2007)
Illinois v. S. Illinois Power Co.,
Illinois Pollution Control Board,
PCB No. 04-201 (Feb. 16, 2006)
National Parks Conservation Assoc.
v. Tennessee Valley Authority, No.
00-00547 (E.D. Tenn. 2000)
Biodiversity Conservation Alliance,
et. al. v. Mountain Cement Co., No.
04-00361 (D. Wyo. Nov. 17, 2004)
•
•
•
•
•
Citizens for Pennsylvania’s Future v.
Allegheny Energy Supply Co., No.
05-00186 (W.D. Pa. July 13, 2006)
PennFuture v. FirstEnergy Corp.,
No. 07-01412 (W.D. Penn. Oct. 15,
2007)
Md. Dept. of Env’t v. Constellation
Power Source Generation, Inc., No.
02-CV-07122918 (Md. Cir. Ct. Sept.
28, 2007)
Sierra Club and Wyoming Outdoor
Council v. PacifiCorp, No. 07-cv042-J (D. Wyo. Feb. 21, 2007)
Conservation Law Foundation, Inc.
and HealthLink, Inc. v. Dominion
Energy New England, Inc., No 1:10cv-11069 (D. Mass. Dec. 21, 2011)
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Case Study: Plant Wansley
• In 2002 Sierra Club brought a citizen suit alleging
thousands of violations of the Clean Air Act over a five year
period (all resulted from SSM)
• Excess opacity – continuously monitored in 6-minute
increments
• Court held that Georgia SSM Provision, once proven and
not challenged by Plaintiffs, provided a complete defense
• 11th Circuit Court of Appeals upheld validity of the Georgia
SSM Rule
The Sierra Club Petition
• Filed Petition on June 30, 2011
• Requested that EPA:
– Revoke its prior approval of Georgia’s SSM rules;
– Issue a “SIP Call” – requiring Georgia to revise its rules
and significantly limit the scope of the SSM provisions,
and/or;
– Issue a “FIP” – an EPA rule that would take the place of
the current Georgia SSM rules
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EPA’s Proposed
Rule
• Issued on February 22, 2013
• Proposed to grant Sierra Club’s Petition for 36 states,
including Georgia
• Provided only 30 days for public comment (agreed to extend
another 30 days)
• Final Rule due September 26, 2013
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Impact of EPA’s Proposal on Georgia
• All excess emissions would be “violations” of
applicable emission limits
• Excess emissions during planned startup and
shutdown would not be exempt
• No affirmative defense may be provided for SSM
events emissions, making them actionable for civil
penalties and injunctive relief (i.e., an order
preventing the emissions going forward)
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Impact of EPA’s Proposal on Georgia
• Excess emissions resulting from an unavoidable
malfunction would be a violation but EPD may
provide a limited affirmative defense to civil penalties
• The defense would not apply to injunctive relief
• In short, the rule would effectively eliminate the
Georgia SSM exemption, particularly as applied to
unit startup and shutdown
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Georgia’s Response
• Georgia EPD
• Georgia Coalition for Sound Envt’l
Policy
• Georgia Industry Env’tl Coalition
• Georgia Paper & Forest Products
Assoc., Inc.
• Southern Company
• Georgia Association of
Manufacturers
• Georgia Power Co.
• Oglethorpe Power Corp.
• Southeastern Lumber Manufacturers
Assoc., Inc.
• Martin Marietta Materials
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Objections To EPA’s Proposal
• EPA failed to review relevant data regarding improved
air quality
• Many SSM events are unavoidable due to technical
limitations of pollution control equipment
• Violates state/federal partnership under CAA
– No consultation with states targeted by SIP Call
• CAA does not prohibit use of SSM exemptions
– Change in EPA’s past position/approvals
– EPA still uses SSM exemptions in Federal rulemakings
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Sue and Settle
• Environmental group files friendly lawsuit against EPA
• EPA negotiates a settlement that generally includes
expected deadlines
• Confidential “settlement discussions” ensue
• Settlement filed with court via consent decree
• Settlement terms/proposal released to public for comment
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Sue & Settle (Cont’d)
• On July 13, 2013, 13
states (including GA),
filed suit against EPA
for failure to produce
records relevant to sue
and settle
• EPA voluntarily agreed
to make notices to sue
publicly available
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What’s Next?
• Final Rule due on September 26, 2013
• Proposed SIP Call rulemaking
– Subject to public notice and comment
– Deadline for state action of 12-24 months
– Possible proposed FIP (for states that fail to act by
the deadline)
• Appeals likely
– Stay of the rule pending appeal less likely
– States may have to move forward with rule changes
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QUESTIONS?
Randy E. Brogdon
Troutman Sanders
randy.brogdon@troutmansanders.com
www.environmentallawandpolicy.com
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