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Groups call US EPA emissions proposal 'backdoor' run around national policy

Former U.S. Environmental Protection Agency officials and environmental groups are accusing the Trump administration of attempting an end-run around a national policy governing the excessive release of air pollution at power plants and other industrial facilities, according to public comments submitted to the agency Aug. 5.

At issue is a June 5 proposal by the EPA's Region 4 office that would reverse an Obama-era action requiring North Carolina to eliminate exemptions for startup, shutdown and malfunction, or SSM, events from its state implementation plan for addressing ground-level ozone pollution.

Huge bursts of harmful emissions can be emitted during SSM events, potentially interfering with an area's ability to meet the health-based National Ambient Air Quality Standards, or NAAQS, which are set by the EPA pursuant to the Clean Air Act. Under that statute, states are required to submit implementation plans, referred to as SIPs, that often include emissions limits for power plants and other facilities that emit pollutants regulated under the NAAQS.

Through a rulemaking finalized in 2015, the EPA under the Obama administration issued what is commonly known as a SIP call specifically disapproving provisions in 36 SIPs for ground-level ozone that granted a variety of exemptions for SSM events. In the case of a SIP filed by North Carolina, the EPA determined that two provisions allowing a state regulatory official to grant exemptions for SSM events when facilities exceed their emissions limits were illegal under the Clean Air Act.

The 2015 SIP call was issued in light of a successful court challenge brought by the Sierra Club that ultimately required the EPA to revise what the U.S. Court of Appeals for the District of Columbia Circuit found to be an incorrect interpretation of how the Clean Air Act applies to SSM events. A coalition of states and industry plaintiffs challenged the 2015 rule after it was finalized, but the litigation remains on hold in the D.C. Circuit while the Trump administration continues to review the regulation.

Meanwhile, in comments responding to President Donald Trump's executive order aimed at reducing the number and cost of federal regulations, the North Carolina Division of Air Quality in 2017 urged the EPA to withdraw its 2015 SIP call for all 36 states. The state agency was joined by Charlotte, N.C.-based Duke Energy Corp., which argued that the Obama-era rule would "effectively require all sources to meet emission standards at all times, including when the control technologies by their very design are not capable of functioning."

'A backdoor attempt'

In proposing to withdraw North Carolina's SIP call, the EPA's Region 4 office said it identified numerous provisions in the state's implementation plan intended to ensure that air quality standards are met. "Any provisions providing exemptions for periods of SSM do not alter the applicability of these general SIP provisions," the office said.

And in comments urging the EPA to finalize the proposal, Duke Energy noted that North Carolina is complying with the NAAQS. "EPA plainly cannot demonstrate that removal of the SSM provisions from North Carolina's SIP is 'necessary or appropriate'" under the Clean Air Act, the company said.

But the Environmental Protection Network, which describes itself as "an organization comprised of over 450 EPA alumni," said the proposal is part of an effort to chip away at the agency's national policy through a piecemeal approach. In addition to Region 4's proposal to grant North Carolina's request, the EPA's Region 6 office in May proposed to let Texas maintain provisions in its SIP that insulate power plants and other large industrial emitters from civil penalties for SSM events, the group noted in comments co-authored by Janet McCabe, acting assistant administrator of the EPA's air office during the Obama administration.

"The proposal is a backdoor attempt to change the national SSM policy and undermine the SIP call without having to do a national rule that would be reviewable in the D.C. Circuit," which has jurisdiction over nationwide EPA regulations, the Environmental Protection Network said. Once the agency's Region 4 office has issued a final rule, other offices could presumably pursue regional actions approving otherwise prohibited SIP provisions, the group added.

Meanwhile, the Natural Resources Defense Council argued that the regional offices' proposals for North Carolina and Texas should be reviewable in the D.C. Circuit because their potential effect spans six different federal appeals court circuits. Allowing other circuits to rule on the matter could lead to "different standards and methodologies applying in different areas of the country."

Aside from the developments with respect to North Carolina and Texas, the EPA's Region 9 office — which covers California, Arizona, Nevada, Hawaii and the Pacific Islands — has proposed to approve five SIP submissions responsive to the 2015 SSM SIP call, an EPA spokesperson said in Aug. 7 email. The EPA is continuing to review its national SSM policy, the spokesperson said.