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EPA Air Law Interpretation for Rejecting SSM Plans Draws Ire from States and Industry
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EPA Air Law Interpretation for Rejecting SSM Plans Draws Ire from States and Industry

States and major industry groups are faulting what they say is EPA's misreading of the Clean Air Act when it issued a rule forcing 36 states to scrap air law waivers for certain facility operations, saying the agency's claim of “fundamental” flaws in the waivers to justify the rule is not tied to specific statutory language and is therefore unlawful.

The argument is similar to ones made by EPA’s critics in the past when the agency has been attacked over statutory interpretations in other lawsuits over air rules, and could pose an important test of its ability to force changes to state air law compliance plans.

The case, consolidated as Walter Coke, Inc., et al v. EPA, et al., contests EPA's June 2015 rule that requires 36 states to remove language from their state implementation plans (SIPs) that allow facilities to exceed air pollution limits during facility startup, shutdown and malfunction (SSM) events. Environmentalists and EPA argue that such exemptions allow large amounts of harmful air pollution to escape controls. But industry groups and allied states counter that the waivers are vital because excess emissions during startup are unavoidable, as are unforeseen malfunctions.

The “SIP Call” rule declared the SIPs to be “substantially inadequate” to justify the move, and set a Nov. 22 deadline for removal of the SIP provisions. States that miss the compliance deadline risk the imposition of federal plans instead through which the agency would directly remove the SSM provisions from SIPs.

The exemptions include blanket SSM exemptions, but also “affirmative defenses” that automatically shield industry from civil liability in the event of a malfunction deemed unavoidable by EPA, and “director's discretion” provisions in state plans that it says provide too much leeway to permit unlawful exemptions.
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