EPA region 6 withdraws “SSM” SIP call for Texas.

July 1, 2019

EPA Region 6 has proposed to withdraw a 2015 finding that Texas’s State Implementation Plan (SIP) is substantially inadequate to comply with the Clean Air Act (CAA) because of state rules that provide an affirmative defense for excess air emissions that occur during upsets and unplanned maintenance, startup, and shutdown activities according to an Environmental Law and Policy report.

Region 6 is now proposing to find that Texas’s affirmative defense provisions for so-called “startup, shutdown, and malfunction” or “SSM” events are “narrowly tailored and limited to ensure protection of the National Ambient Air Quality Standards (NAAQS),” as required by EPA guidance.

Accordingly, Region 6 is proposing to withdraw EPA’s 2015 “SSM” SIP call issued to Texas based on the finding of substantial inadequacy.

While EPA’s proposed action only affects Texas, the proposal states that the Region 6 Regional Administrator is “considering reinstating EPA’s policy that affirmative defense provisions in the SIPs are generally approvable in the states in Region 6.”

Nonetheless, EPA took pains in the proposal to limit its proposed action to Region 6, so the Agency’s action is not particularly helpful to states outside of Region 6 who were also subject to the Agency’s 2015 SSM SIP call. Interestingly, EPA Region 6 characterized its proposed action as a departure from national policy based on the specific circumstances applicable to Texas and sought concurrence from EPA headquarters under a CAA regulation that allows a region to vary from national policy after receiving such a concurrence.

What this means to you
EPA region 6 is now proposing to find that Texas’s affirmative defense provisions for so-called “startup, shutdown, and malfunction” or “SSM” events are “narrowly tailored and limited to ensure protection of the National Ambient Air Quality Standards (NAAQS),” as required by EPA guidance.

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