The Environmental Protection Agency is proposing to disapprove 36 state implementation plans that include provisions shielding utilities from civil penalties for exceeding air pollutant emission limits when a plant is starting up or shutting down. The Feb. 12 proposed rule, which responds to a Sierra Club petition, is aimed at states with provisions that exempt such emissions or that provide an affirmative defense to shield sources from penalties for such emissions, provided specified conditions in the state implementation plan were met.
The agency is proposing to disapprove the 36 state plans, but said it will review each of them to determine whether they include a provision that “is in fact an exemption, a statement regarding enforcement discretion by the air agency, or an affirmative defense.” While automatic exemptions and directorâ€™s discretion exemptions from emission limitations are not consistent with the Clean Air Act, state implementation plans “may include criteria and procedures for the use of enforcement discretion by air agency personnel and appropriately defined affirmative defenses,” EPA said. Three other state plans targeted by the Sierra Club have permissible provisions, the agency said.
In the past, “it was widely believed that emission limitations set at levels representing good control of emissions during periods of normal operation could in some cases not be met with the same emission control strategies during periods of startup, shutdown, maintenance, or malfunction,” EPA said. “Accordingly, it was common for state plans to include provisions for special, more lenient treatment of excess emissions during such periods.”
The states for which the EPA proposed to find that the implementation plans are inadequate, in whole or in part, are: Maine, New Hampshire, Rhode Island, New Jersey, Delaware, Virginia, West Virginia, Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Illinois, Indiana, Michigan, Minnesota, Ohio, Arkansas, Louisiana, New Mexico, Oklahoma, Iowa, Kansas, Missouri, Colorado, Montana, North Dakota, South Dakota, Wyoming, Arizona, Alaska and Washington. Also included was the District of Columbia.
Should the proposed rule become final, states would have 18 months to submit corrected state implementation plans.
The agency denied a request by the Sierra Club to prohibit affirmative defenses for excess emissions that occur when a plant malfunctions due to circumstances beyond its control. — ROBERT VARELA