09/27/2017 - Regulatory Rollback

Power Plant Startup, Shutdown, and Malfunction Rule

by Hana Vizcarra, Robin Just

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

Why it Matters

Power plants and other industrial sources emit more pollution as they start up, shut down, or when they malfunction than during normal operations. These periods of higher pollution have negative effects on air quality and human health. EPA regulates this excess pollution through State Implementation Plans under the Clean Air Act.

Current Status

The litigation challenging EPA’s 2015 action remains on hold in the D.C. Circuit. Meanwhile, EPA is taking action in specific jurisdictions that signal a broader policy change on how it treats excess emissions during periods of startup, shutdown, and malfunction.

History

June 12, 2015 EPA publishes a final action clarifying and revising its guidance on excess startup, shutdown and malfunction emissions. EPA finds that thirty-six states must revise their State Implementation Plans under the Clean Air Act to incorporate the new requirements by Nov. 22, 2016.

June 12, 2015 Industry sues EPA over its final action. Walter Coke v. EPA, No. 15-1166 (D.C. Cir.).

Trump Era

April 18, 2017 EPA asks the court to delay oral arguments, set for May 8, 2017, while the agency reviews the action.

April 24, 2017 The D.C. Circuit grants EPA’s motion, canceling oral argument and suspending the case indefinitely while EPA reviews the action. The Court orders EPA to file status reports every 90 days beginning July 24, 2017.

June 21, 2017 The D.C. Circuit dismisses Cases 15-1166 and 15-1216 and consolidates remaining cases under Envtl Comm of Florida Elec. Power Coordinating Group v. EPA, Case No. 15-1239 (D.C. Cir.).

April 29, 2019 EPA proposes changes to how it interprets provisions that govern excess emissions that occur during certain upset events, unplanned maintenance, startup, or shutdown activities that apply only to Texas. These changes signal a potential policy change that could apply beyond Texas.

June 5, 2019 EPA proposes approving North Carolina’s State Implementation Plan that departs from the 2015 policy and no longer requires the state to make the revisions required in the 2015 action.