December 17, 2015

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Revisions to the State Affirmative Defense Provisions for Emission Exceedances During Startup, Shutdown or Malfunctions (SSM)

James W. Sanderson

Julie A. Rosen

Ryley Carlock & Applewhite lawyers Jim Sanderson and Julie Rosen successfully represented the Colorado Electric Utilities Coalition (CUC) in a recent Colorado Air Quality Control Commission rulemaking to revise State rules concerning the treatment of excess air emissions during periods of Startup, Shutdown and Malfunction (SSM). The treatment of excess air emission during SSM periods is an issue Ryley Carlock lawyers have been involved with for more than 15 years.

This latest rulemaking was prompted by a U.S. Environmental Protection Agency (EPA) mandate requiring certain states, including Colorado, to revise state rules providing affirmative defense provisions for emission exceedances during Startup, Shutdown and Malfunction activities.

Jim and Julie worked closely with the State and stakeholders to develop a revised rule that complies with EPA’s mandate and addresses the State’s policy to allow a narrow affirmative defense for excess emissions. During the contested Air Quality Control Commission proceedings and final hearing, Jim and Julie submitted briefs on behalf of the CUC and provided testimony to support the revised rule. Ultimately, the Air Quality Control Commission voted 5 to 3 to approve the revised rule. The rule was adopted to be part of the Colorado State Implementation Plan (SIP) under the Clean Air Act, and therefore will eventually be sent to the EPA for approval.

Policies and rules addressing emissions during periods of Startup, Shutdown and Malfunction have always been an important issue under the Clean Air Act because operations during such periods are not the norm and may lead to exceedances beyond the control of the facility operator. Preceding this rulemaking is a history of State rulemakings, Federal court decisions, Federal rules issued by EPA, and opposition by certain environmental groups. Thus, this was a high-stakes rulemaking with complex parts.

For more information and background on the issue of Startup, Shutdown and Malfunction affirmative defenses, see Julie's article “EPA Proposes Eliminating State Regulations as to Startup, Shutdown, and Malfunction Emissions,” which addresses EPA’s mandate requiring states to revise their policies.