17 states launch legal assault against startup-shutdown rule

By Amanda Peterka | 08/12/2015 12:44 PM EDT

Seventeen states are challenging U.S. EPA’s recent rule that changed the way states are required to address excess air pollution that occurs during plant startups and shutdowns or industrial equipment malfunctions.

In a petition for review, the states argue that EPA "erroneously concluded" that their plans to reduce pollution were "inadequate" to address emissions that occur during those times.

Led by Florida, the states filed the petition yesterday in the U.S. Court of Appeals for the District of Columbia Circuit.


"We will not step aside while the EPA, through heavy-handed federal overreach, threatens to upend a system that the EPA has approved multiple times and has provided a consistent, reliable framework to safely provide electricity to millions of Floridians across the state," Florida Attorney General Pam Bondi said in a statement. "Furthermore, the agency’s action could result in higher utility bills for Florida consumers."

EPA’s final rule published in June rescinded long-standing state provisions known as "affirmative defense" that shield industrial facilities from civil penalties for violations of national ambient air quality standards that occur during startups, shutdowns and malfunctions.

The final rule also found that states cannot automatically exempt facilities from emission limits during those times. EPA required that 36 states reopen Clean Air Act state implementation plans, or SIPs, and revise them within 18 months to comply with the changes (Greenwire, May 22).

The rule arose out of a petition by the Sierra Club, which has long argued that affirmative defense and exemptions during "SSM" events constitute a loophole that allows facilities to release emissions in excess of permit limits.

EPA has said the decision to eliminate affirmative defense from state plans was also in response to a ruling last year by the D.C. Circuit that found the agency lacked authority to grant cement kilns an affirmative defense for pollution violations occurring during malfunctions (Greenwire, Oct. 16, 2014).

In the statement, though, Florida’s attorney general said EPA’s decision to require states to change previously approved plans violated states’ rights under the Clean Air Act. The state also argued the rule would stall progress in improving air quality.

Along with Florida, the states challenging the rule are Alabama, Arizona, Arkansas, Delaware, Georgia, Kansas, Louisiana, Mississippi, Missouri, Ohio, Oklahoma, South Carolina, South Dakota, West Virginia, Kentucky and North Carolina’s Department of Environment and Natural Resources.

"Once again, the EPA is choosing to put the political interests of the Sierra Club ahead of Arkansans," said Arkansas Attorney General Leslie Rutledge in a statement. "In yet another ‘sue and settle’ case, the EPA is rushing to appease the interests of the Sierra Club."

EPA is facing several legal challenges over the final startup, shutdown and malfunction rule.

Free-market law firm Southeastern Legal Foundation and Walter Coke Inc. challenged it in June in the D.C. Circuit, while several entities, including the Texas Commission on Environmental Quality, have filed separate petitions against the rule in the 5th U.S. Circuit Court of Appeals.

In court documents, EPA has argued that the Texas challenge should be either dismissed or transferred to the D.C. Circuit because the rule is national in scope.

Environmental groups have moved to intervene in the legal action in both courts (Greenwire, July 21).

"EPA is required to close these loopholes because they are inconsistent with the Clean Air Act," Sierra Club senior attorney Andrea Issod said in a recent statement. "The loopholes also have the real-world consequences of compromising air quality and public health."