This post provides an important Ohio-specific update to our October 11, 2021 post regarding U.S. EPA’s policy on State regulatory exemptions for air emissions during periods of facility startup, shutdown and malfunction (SSM). Following U.S. EPA’s reinstatement of a 2015 policy that SSM exemption and affirmative defense provisions in a State Implementation Plan (SIP) will generally be viewed as inconsistent with Clean Air Act (CAA) requirements, U.S. EPA issued a final rule finding that 12 states, including Ohio, failed to submit revisions to their SIPs which provide for such exemptions. U.S. EPA’s Finding of Failure to Submit (“Finding”) pertains to a 2015 SIP Call that required 36 states to submit SIP revisions removing SSM exemptions which were due to U.S. EPA no later than November 22, 2016.
The consequences U.S. EPA’s Finding are significant. If a State does not make the required SIP revisions within 18 months of the February 11, 2022 effective date of the final rule, the CAA requires U.S. EPA to impose sanctions on the non-compliant State, including requiring emissions offsets for all new and modified major sources subject to the nonattainment New Source Review program and restrictions on highway funding. Additionally, U.S. EPA is required to promulgate a Federal Implementation Plan, which would supersede and replace the deficient SIP, no later than two years after issuance of the Finding if the affected State has not submitted, and U.S. EPA has not approved, the required SIP.
Despite U.S. EPA’s Finding, Ohio and the other 11 States seek to maintain the right to provide SSM waivers in their SIPs via a pending lawsuit challenging the 2015 SIP Call (See Environ. Comm. Fl. Elec. Power v. EPA, et al., No. 15–1239 (D.C. Cir.)). Whether the States ultimately submit the required SIP will likely depend on the outcome of the litigation.