January 9, 2019 Sweetnam and Schwartz

The US Environmental Protection Agency (“EPA”) issued a proposed rule on Feb. 22, 2013, that would require 36 states, including Georgia, to revise the startup, shutdown, and malfunction (“SSM”) rules in their Clean Air Act State Implementation Plans (“SIPs”). As a general matter, the Georgia SIP provides a defense for air emissions exceeding an applicable emission limit during SSM events. The proposed rule would require states to remove SIP provisions allowing exemptions from emission limitations during SSM events. Instead, the proposed rule allows an affirmative defense against penalties (but not injunctive relief) for violations of emission limits during unplanned and unanticipated malfunctions. Under the proposed rule, EPA would issue a SIP-call to states requiring the removal of SSM exemptions.

All facilities should review their air operating permits for SSM exemptions. If such exemptions exist, the permit may be required to be modified under the proposed rule.

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