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Environmental Comm. of the Fla. Elec. Power Coord. Grp. v. EPA   (D.C. Circuit)

Challenging the EPA's effort to amend state plans regarding emissions during startups, shutdowns and malfunctions

On June 12, 2015, the EPA published a rule entitled "State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Finding of Substantial Inadequacy; and SIP Calls for Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction." That is a complicated way of saying they responded to a Sierra Club petition by ordering state environmental enforcement plans to conform to their policies relating to excess emissions into the air when plant equipment is started up, shut down, or when it malfunctions (SSM events). The agency found that provisions in 36 state implementation plans (SIPs) are inadequate, in part because they contain provisions that provide an affirmative defense to emissions violations during SSM events.

The NAM is a member of the SSM Litigation Group, which filed a petition to review the EPA's final rule. 18 states filed similar challenges, as have various companies and business organizations. On March 16, 2016, the NAM and all the other industry petitioners joined in our main brief on the merits, arguing: (1) the EPA failed to justify its SIP call, (2) its prohibition on so-called "exemptions" from emission limitations are not supported, and (3) its prohibition of affirmative defenses by industry is not supported by the Clean Air Act or case law.

On March 25, 2017, proceedings in the case were suspended while the EPA reviews the rule. The agency will submit reports on the status of this review to the court every 90 days.

Related Documents:
Industry reply brief  (September 26, 2016)
Industry brief  (March 16, 2016)


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