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A Brief History of Startup, Shutdown, and Malfunction Plans Melvin E. Keener, Ph.D. Presented April 2, 2003 ABSTRACT EPA has long recognized that startup, shutdown and malfunctions (SSM) are much different from normal, steady-state operations. Most of the early guidance on defining these plans came through memos and informal guidance documents. In 1994, EPA required that facilities develop SSM plans and incorporate them into their Title V permits by reference. After finalizing the 1994 rule, EPA recognized that incorporation of the plan into the permit created problems when trying to modify the plan. Additional guidance memos were issued and in 2002, EPA revised the requirements. The Sierra Club did not approve of some of these changes and sued the Agency. Industry also sued over certain SSM provisions. EPA is currently in the process of revising the SSM provisions based on a formal settlement agreement with Sierra Club and an informal agreement with industry. INTRODUCTION EPA has long recognized that startup, shutdown and malfunctions (SSM) are much different from normal, steady-state operations. Most regulations are written to control emissions during steady-state operations. Since this represents the majority of the time a facility is in operation, most of the work on controlling emissions has concentrated on what happens during steady-state operations. However, early into the process, EPA recognized that transient periods will occur. Some are well defined in time and space, such as startup and shutdowns. The time and design for a startup can be planned well in advance. Likewise, most shutdowns can be planned. However, unlike startups, some shutdowns occur in an emergency situation and the facility may not have the luxury of a long planning period for that shutdown. Despite even the best design and maintenance, equipment will break and malfunctions will occur. Over the past 20 plus years, EPA has been evolving a strategy on how to handle these transient periods. Bennett Memo - 1982 The official record begins in 1982 with EPA distributed a memorandum from Assistant Administrator for the Office of Air, Noise, and Radiation Kathleen Bennett (1). This memo was in response to a request for clarification of EPA's policy on excessive emissions during startup, shutdown, maintenance, and malfunctions. Excessive emission provisions had been included in a number of State Implementation Plans that were approved by the Agency in 1971 and 1972. A number of these plans were approved with fairly broad provisions for controlling excess emissions under these transitional periods. In 1978, EPA adopted a policy that defined all excess emissions as violations (1). However, they did allow states the discretion of deciding whether to take enforcement action on those violations. One of problems with these policies was that there were no clear definitions and limitations of when to shield excess emissions. It was difficult to tell when the excess emissions were due to poor maintenance or design as versus unavoidable malfunctions. In an attempt to rectify this, the memo from Assistant Administrator Bennett defined specific criteria that needed to be met when applying enforcement discretion for excess emissions during these transitional periods. Five criteria were developed for malfunctions. These are:
The memo went on to state that sudden breakdowns which could have been avoided by better operation and maintenance practices should not be considered as malfunctions. EPA's policy on startups and shutdowns were that they were a part of normal operations. As a result, it was expected that careful planning would eliminate violations of emission limitations during these periods. If excess emissions occurred during startup or shutdown, they can only be considered as a malfunction if they were actually caused by a sudden and unforeseeable breakdown. Similarly, EPA treated scheduled maintenance as a predictable event that could be scheduled. Excess emissions during scheduled maintenance should be treated as violations unless the facility could prove that the excess emissions could not have been avoided. General Provisions - 1994 This policy stayed in place until EPA finalized the National Emission Standards for Hazardous Air Pollutants for Source Categories: General Provisions in 1994 (2). These General Provisions required an owner/operator of an affected source to develop and implement a written startup, shutdown, and malfunction plan (40 CFR 63.6(e)(3)). This plan would describe in detail, procedures for operating and maintaining a source during these periods of operation. The plan would also incorporate corrective action for malfunctions of air pollution control equipment. The plan was to be developed and kept as a part of the on-site records. As such, it was to be made available for inspection upon request. In addition, the rule required that the startup, shutdown, and malfunction plan be incorporated in the Title V permit by reference. In addition to developing the plan, the General Provision included several reporting requirements. The owner/operator was required to occurrences of startups, shutdowns, or malfunctions (40 CRF 63.10(d)(5)). There were also reporting requirements in 40 CFR 63.10(e)(3) for excess emissions during periods of startup, shutdown, and malfunctions. Both of these reports are due every 6 months as a part of the semi-annual reporting requirements of the General Provisions. As happens with a number of final rules, a number of parties sued over the provisions in the General Provisions. One of the concerns of the parties was the requirement to incorporation the startup, shutdown, and malfunction plan into the Title V permit by reference. Industry parties were concerned that this would mean that any changes to these plans would have to be submitted to the permitting authority as a major revision of the Title V permit. Industry argued that these plans were internal planning documents and could be frequently changed based on changes in operating procedures. If they were incorporated into the Title V permit, making such changes could not be done on a timely basis. Permit modification simply take too long to be approved for this plan to be a working document. In addition, there were no provisions in the rule where these plans would undergo the same level of review as does the other parts of the Title V permit. Thus, at least one part of the permit would be incorporated without any review by the permitting agency. On the other hand, if the plan is incorporated into the Title V permit by reference, there is no doubt that acting under the plan would provide the protection of a permit shield. Seitz Memo - 1996 Not only did industry object to the incorporation of the SSM plan into the Title V permit, a number of state agencies also expressed concerns about this. In an attempt to clarify this, John Seitz, Director of the EPA's Office of Air Quality, Planning, and Standards, wrote a memo to Regional Air Directors, dated January 18, 1996 (3). In this memo, EPA made it clear that it was not their intent for the contents of the SSM plan to be written into the Title V permit and that the repository for the SSM plan is at the facility, not as a part of the title V. Owner/operators are not required to submit the plan or the revisions of that plan to permitting agency but were required to keep copies of all previous plans for five years. The memo also made it clear that the permitting authority had the right to review a copy of the plan if it so desired. However, this review was subject to the protection of confidential business information under 40 CFR 63.15. Seitz Memo - 1999 In a second memo (4), Mr. Seitz recognized that incorporating of any plan (including SSM plans) into a Title V renders the contents of those plans into enforceable permit conditions and makes any changes to this plans subject to the requirements for permit revisions. Mr. Seitz suggested that such an outcome could be avoided by making only a general reference in the permit to the plan. While the plan would still be incorporated by reference, the reference would not cite the date or the specific contents of any plan. At that time, EPA believed that this approach would allow the plan to be changed without triggering the permit revision process. EPA went on to suggest that the Title V permit state that the plan would be incorporated by reference and that any revisions to the plan would automatically be incorporated by reference and would not require a permit revision. Herman Memo - 1999 On September 20, 1999, Steven Herman, Assistant Administrator for Enforcement and Compliance Assurance, and Robert Perciasepe, Assistant Administrator for Air and Radiation, released a third memo on SSMs (5). This policy primarily pertained to approving state implementation plans that may provide a defense for violations caused by excess emissions during periods of startup, shutdown or malfunction. In this, EPA reaffirmed that all violations must be considered as violations and that any automatic exemptions should not be allowed. EPA acknowledged that even equipment that is properly designed and maintained can sometimes fail. The memo goes on to re-affirm the affirmative defense criteria for malfunctions as developed by the Bennett memo (1) and add to that list of defenses. The new list of affirmative defenses is as follows:
In the memo, EPA states that they will interpret these provisions narrowly. In addition, the memo allows states to craft narrowly defined SIP revisions to take into account the technology limitations during startup and shutdown when emission limitations cannot be met. For EPA to approve these SIP revisions, the following criteria must be met:
In addition, the memo also lists times when enforcement discretion may be used to address excess emissions during startup and shutdown. However, the memo does state that all periods of excess emissions during startup and shutdown should be considered as violations and that the affirmative defense provisions only allow for penalty relief, not injunctive relief. Furthermore, the burden of proof falls on the owner operator and must demonstrate that:
If malfunctions occur during startup and shutdown, they should be treated as any other malfunction. General Provision Amendments - 2002 Partially in response to the lawsuit on the General Provisions, EPA proposed a number of changes in the General Provisions on March 23, 2001 (6). The final rule (7) contained a number of changes in the startup, shutdown, and malfunction provisions. EPA added a phrase that stated that facilities must either meet the standards or be in compliance with their SSM plan. This language mirrored the requirements in a number of specific MACT (Maximum Achievable Control Technology) rules (e.g., Subparts F, U, YY, EEE, GGG, HHH, MMM, OOO, etc.). Most facilities welcomed this language in that it made it clear that the facility had to either meet the standards or follow their SSM plan. Facilities were also required to include the "number, duration, and a brief description of each startup, shutdown, and malfunction." EPA justified this as a way to provide the regulatory agency with "adequate information without placing an undue additional burden on the source." In addition, EPA removed the requirement that the SSM plan should be incorporated by reference into the Facility's Title V permit. This move made it clear that the SSM plan is not included in the permit shield because it is no longer a part of the Title V permit. Finally, EPA declined to require that SSM plans be submitted to the permitting agency. EPA concluded that the authority to request these plans already exist under 40 CFR 70.4(b)(3)(viii). They also made it clear that the permitting authority has the legal authority make available to the public any plan except for confidential business information. Sierra Club Lawsuit - 2002 The ink was hardly dry on the final rule when Sierra Club sued (April 25, 2002). Their primary concern was the provision extending the date for the Part 2 applications for case-by-case MACT from one year to two years. They also had three problems with the revised SSM provisions. The first was the inclusion of the statement that facilities had to either meet the standard or follow their SSM plan. The second was the failure of the Agency to require SSM plans to be submitted. The third was based on the language that did not force the permitting authority to make changes in an SSM plan if it was found to be inadequate. EPA immediately started negotiations with the Sierra Club on these issues primarily because they felt vulnerable on the date for the Part 2 applications. Industry also filed suit on certain SSM provisions but were excluded from the negotiations with Sierra Club. EPA quickly reached a settlement agreement with the Sierra Club and on August 26, 2002, placed a notice in the Federal Register (67 FR 54804) announcing the agreement. This notice announced EPA's intent to propose changing the deadline for Part 2 applications from two years back to one year. In addition, they announced their intent to proposed following three changes to the SSM provisions:
As a result, the second firestorm hit the Agency. Industry was extraordinarily irritated at being left out of the negotiations over the SSM provisions. They felt that EPA had mishandled the process from the beginning by not waiting for all parties to submit their issues and then including all parties in the negotiation. However, as EPA pointed out, they are under no obligation to include all parties and can develop a settlement agreement with only a portion of the parties in the litigation. The states and industry were irritated because the deadline for the Part 2 Application was moved to one year. This would require facilities where EPA had not promulgated MACT rules to submit a Part 2 Application that may never be acted upon. States did not know what to do with these applications and had no intention of acting upon them. Discussion quickly moved to the political level. Sierra Club made it clear that they considered the sentence that equated following an SSM plan to meeting the standard was a significant loophole in the regulations. They pointed out that a facility could craft an inadequate SSM plan, follow it and be protected from any violations of emission standards during that time. While the regulations suggested that a permit writer could require changes in inadequate plans, there were no requirements to do so. They expressed concern that since no one could see these plans, it was essentially a facility writing their own permit conditions for any startup, shutdown or malfunction. Thus, Sierra Club saw SSM plans as a way that facilities could violate their permit requirements without any risk from enforcement. After numerous discussions, EPA agreed to reopen negotiations on the Part 2 Application deadline and reached an acceptable compromise. A compromise was not reached on the SSM provisions. EPA did agree to remove part of the additional reporting requirements in 63.10(d)(5). On December 9, 2002 (67 FR 72875), EPA proposed the compromise on the timing of the Part 2 application and several changes in the SSM provisions. EPA stated that they considered the revisions in the SSM provision to be "modest in character" and "generally consistent with policies articulated in the preamble." EPA went to great lengths to explain that SSP plans must be drafted in a manner to satisfy the general duty to minimize emissions. EPA even went on to state that compliance with a properly drafted SSM plan during one of these events will satisfy the general duty clause to minimize emissions. On the other hand, they also stated that compliance with an inadequate plan is not defense for failing to minimize emissions. They also stated that nothing in these revisions is intended to alter the general principle that compliance with MACT standards is not mandatory during periods of startup, shutdown, or malfunction. In the December 9 notice, EPA proposed the three changes listed in the settlement agreement. In addition, EPA proposed to remove the reporting requirements in 63.10(d)(5) for startups and shutdowns. They left the reporting requirements for malfunctions intact. Under the settlement agreement with Sierra Club, EPA is required to finish these changes by April 27, 2003. As expected, industry groups submitted comments opposing the three Sierra Club changes in the SSM provisions and Sierra Club supported those changes. Industry supported removing the reporting requirements for startup and shutdowns and suggested that there was no need to report malfunctions that do not exceed the standards. Sierra Club opposed the removal of the reporting requirements. It should be noted that all this section does is remove the requirement to report SSMs that do not exceed the standards. Another section of General Provisions (63.10(e)(3)) requires that excess emissions be reported. While it is not clear exactly how the Agency will draft the changes to the final amendments, they clearly continue to support the language in the memos. Recently, EPA promulgated a direct final rule (8) that approved several revisions to Michigan's SIP. In approving the revisions, EPA followed each of the points in the Herman memo (5) pertaining to enforcement discretion and affirmative defense. CONCLUSIONS Since the Agency has not completed the work on the second set of revisions to the General Provisions, the story is not yet complete. However, from these actions, facilities can get a good idea of how to define an SSM event. It is clear that SSM plans are not a part of the Title V permit unless the permit writer requires them. To date, SSM plans are not approved by the permitting authority; although some rule do allow this as an option (Subpart EEE). EPA's preamble language has tried to make it clear that following a well developed SSM plan satisfies the general duty clause to minimize emissions. Whether this gets translated into regulatory language remains to be seen. SSM plans may have to be submitted to the permitting authority. This is primarily to make it easy for interest groups to obtain copies. There is very little guidance from EPA on how to develop SSM plans and even less guidance on how to evaluate one of these plans. Facilities may be tempted to define every conceivable event as a malfunction in order to get the protection of an SSM plan. While having this may give some protection, it also initiates reporting requirements every time one of these events happens. If an event happens but will not normally result in excess emissions (defined as above the standard), a facility may wish to leave this event out of the definition in order reduce reporting requirements. On the other hand, if an event will trigger excess emissions, it should be included. Facilities will need to understand the trade-offs between including events and the reporting requirements this triggers. A large part of how these plans are used will depend upon enforcement discretion. While there is some direction in the Herman memo, it might be worthwhile to look at the history of using enforcement discretion under RCRA. One incident that comes to mind is the examination of waste analysis plans under the Boiler and Industrial Furnace Rule and the subsequent enforcement on what was judged to be inadequate plans. REFERENCES
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