What You Need to Know About the SSM SIP Call

By: Paul Hansen, P.E.  – PPM Project Engineer

On September 17, 2014, the EPA supplemented the agency’s proposed State Implementation Plan (SIP) Call that addressed Start-up, Shutdown, and Malfunction (SSM) Rules (February 22, 2013). The February 2013 proposal left state agencies with the authority to provide an affirmative defense for “Qualifying Malfunctions” on a case-by-case basis. However, the U.S. Court of Appeals for the District of Columbia Circuit Court (via special interest groups) subsequently found that the EPA exceeded its authority in establishing an affirmative defense for violations caused by malfunctions. More specifically, EPA was found to be in violation of the Clean Air Act (CAA) Section 304(a) which provides a private right of action. Given this ruling the EPA revised their SIP Call proposal to exclude affirmative defense provisions and director’s discretion provided by SIP’s.

So how does this change to the scope of the SSM SIP Call potentially affect a facility?  In regards to state enforcement, it changes nothing. Each state will still be allowed to decide if enforcement actions should be pursued. The real change comes in the form of private citizen liability.  Affirmative defenses may not be provided by the states that prevent civil suits. A private citizen has the right to sue and the CAA vests the authority over that right with the courts, not the EPA. This ruling will affect 39 states across the nation.

During my tenure at the Alabama Department of Environmental Management (ADEM) I came to realize that if a facility operated for long enough that they would have a malfunction at some point in time, no matter how well run. The key for a facility, with respect to state enforcement, was to ensure any malfunction was “unavoidable” and not repeated. There are a few practices I would suggest a facility follow in the event of a malfunction.

  1. Documentation! Your best defense will be derived from having the entire malfunction fully documented. Date, Time, Cause, Duration, Emission Estimates, and (most importantly) corrective actions taken. Do not leave any pertinent information undocumented. Environmental compliance is all about showing diligent care and concern for the environment. As they say “the proof is in the pudding” and in court, your documentation (aka – pudding) is the proof of your diligent care and concern.  Of utmost importance is documentation of corrective actions taken as this shows complete follow through with the end result being process and/or procedural improvements.
  2. Contact your state permit or enforcement engineer. This step will help you on several levels. First, it shows you engaging the situation and indicates a willingness to seek assistance with the matter. Second, the state may have questions and require a detailed written response providing more documentation. Third, should enforcement be deemed necessary you have the opportunity to start the narrative rather than having private citizens or state agencies speculating what events actually occurred. This could help you reach a settlement with the state that will satisfy all parties involved.
  3. Preventative Maintenance. Most enforcement actions take place because a malfunction was preventable. While I am a firm believer in duct tape at home, it is not an acceptable preventative measure at a facility. Conducting an audit of your permitted units to avoid a “preventable” malfunction is your very best defense. Formal documentation of these audits is highly recommended.  If you do conduct an audit, be aware that if you find regulatory violations, you will need to report those.  Many states have an audit policy that allows for reductions in penalties for violations discovered during an audit.  Ensure that you know the timing required by these policies; in some cases disclosure is required shortly after an audit.

If you have any questions regarding the SIP Call or would like assistance with an audit for your facility to ensure full permit compliance, please contact the professionals at PPM Consultants, Inc.