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Environmentalists File NOI to Sue EPA over Texas SSM Emissions

Advisory | July 7, 2016

On July 1, 2016, a coalition of nine environmental groups filed a Notice of Intent (NOI) to sue the U.S. Environmental Protection Agency (EPA) to compel the Agency to respond to the coalition's May 27, 2015 Petition to EPA to address the startup, shutdown, and maintenance (SSM) exemption in certain air quality permits issued by the Texas Commission on Environmental Quality (TCEQ) to coalfired power plants. The coalition of environmental groups includes Environmental Integrity Project, Air Alliance Houston, Environment Texas, Texas Campaign for the Environment, Downwinders at Risk, Neighbors for Neighbors, Public Citizen's Texas Office, and the SEED Coalition.

The coalition's May 2015 Petition to EPA requested the Agency to take action to remedy violations of the Clean Air Act (CAA) by TCEQ and certain electric generating companies. Specifically, the petition alleges that TCEQ's decision to exempt coal-fired electric generating units from emission limits during planned startup, shutdown, and maintenance violates Sections 110 and 116 of the CAA, Federal New Source Review (NSR) requirements, specific substantive and procedural requirements of the Texas State Implementation Plan (SIP), and the federally-enforceable rules revising Title V operating permits.

Subsequent to the coalition's petition, the NOI cites "two key developments" that it alleges "have made it more imperative that EPA act." First, the NOI alleges that the TCEQ's December 2, 2015 letter to EPA regarding the State SIP rules is a post-hoc "interpretative letter," and that the State never meant for the SIP emissions limits at issue to apply during SSM. The TCEQ letter argues that the SIP emissions limits were based on a study conducted by an environmental consulting firm and premised on emissions being controlled by an electrostatic precipitator (ESP) (or similarly effective control) and were not intended to apply during periods when ESPs are not effective at controlling emissions or opacity, as during SSM periods. The SIP rules specifically implemented a control strategy for emissions from SSM activities, including reporting requirements.

Second, the coalition argues that EPA has "already formally agreed with the [coalition's] position" in its February 3, 2016 order granting in part a petition to object to the Title V air operating permit for the Southwestern Electric Power Company's H.W. Pirkey power plant. The NOI states that "you agreed with the [coalition] and you objected to the permit on the ground that it impermissibly incorporated the very permit limits and exemptions complained of in the petition that appeared to relax SIP limits during planned [SSM] activities." The NOI further alleges that the Pirkey plant order "is tantamount to a finding that all the other coal plants' permits (which have the same exemptions and permit terms as the Pirkey plant) suffer from the same deficiencies." KEAG Bulletin No. 2016-03, entitled "EPA Issues Order Objecting to SSM Provisions in a Title V Operating Permit" covered this order. The NOI further notes that the coalition intends to file suit against EPA in federal district court anytime beginning 180 days from the postmarked date of its NOI letter to compel the Agency action requested in the May 27, 2015 Petition.

In 2015, EPA issued a SIP call directing 36 states, including Texas, to revise their SIPs to eliminate affirmative defense provisions for emissions from startup, shutdown, and malfunction (as distinguished from emissions from "maintenance"), which EPA has never exempted. The SIP call is currently facing a legal challenge and is part of EPA's effort to implement a policy in line with federal court rulings finding such exemptions unlawful under the CAA. The courts have similarly found unlawful "affirmative defense" provisions, designed to shield companies from civil liability in the event of a malfunction considered "unavoidable" by EPA, and the Agency also wants states to remove those under the SIP call.

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