“Affirmative defense” is history. How is your facility addressing Startup, Shutdown, & Malfunction (SSM) emissions?

Affirmative defense were widely used to explain the emissions excursions. It was a way to document that the emission exceedances are beyond the facility control and therefore an NOV is not warranted. EPA routinely accepted the Startup, Shutdown, & Malfunction (SSM) excursions as an affirmative defense.

Well, Sierra Club sued and the D.C. Circuit vacated the EPA statements that exempted sources from compliance during periods of start-up, shutdown, and malfunction (SSM). The EPA interpreted the ruling to mean that emissions standards must “limit the quantity, rate, or concentration of emissions of air pollutants on a continuous basis.”

Court and EPA decision did not say that the facility must apply the same emission standard at all times. In fact, many major source permits have different emission standards for periods of startup and shutdown. I successfully got such permit in 2009.

Malfunctions are tricky…but it may be possible to quantify emission standards and justify not-to-exceed emission criteria. More on this later!

…beware of NGO lawsuits!

If a facility does not have a SSM compliance strategy in place, it may be in for a surprise. State agencies may not act on the SSM compliance enforcement issue until EPA mandates it (Hint: It’s in the works). Nonetheless, each facility permit has a tons per year limit on all regulated pollutant. Emissions during startup, shutdown, and malfunctions must be quantified and reported.

Same details apply to minor sources! If a facility actuals emissions are within, say 90 percent, of the major source thresholds, it is possible that SSM emissions can tip the scale into facility becoming major unknowingly. Also, the facility may be quantifying and submitting the annual emission statements incorrectly.

If you have any questions, or would like to discuss SSM compliance strategy for your facility, please contact Sam Joshi at (215) 389-2811.