Topic Spotlight

New Guidance Issued on MACT Compliance During Start-up, Shutdown, and Malfunction Events

In an April 20, 2006 final rule (71 FR 20446), EPA greatly diminished the regulatory significance of the start-up, shutdown, and malfunction plans (SSMPs) required under 40 CFR Part 63 maximum achievable control technology (MACT) standards. The final rule revised the MACT general provisions (Part 63, Subpart A), numerous Part 63 MACT standards, and the Part 65 consolidated federal air rule such that facilities were no longer required to follow their written SSMP during periods of start-up, shutdown, or malfunction. While many MACT standards still require the development of an SSMP, facilities could choose whether or not to make use of the plan during any given start-up, shutdown, or malfunction event. Effectively, the 2006 rulemaking meant that compliance with MACT emission limits during periods of start-up, shutdown, and malfunction was not necessarily required, although there was a general obligation to minimize emissions during such periods.

In a December 19, 2008 decision, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit Court) vacated the April 20, 2006 rulemaking (Sierra Club v. EPA, 551 F.3d 1019 [D.C. Cir. 2008]). In the case, the federal appeals court rejected EPA's position that compliance with MACT standards is not mandatory during start-up, shutdown, and malfunction periods. The court found that the start-up, shutdown, and malfunction exemption provided in the MACT general provisions violated the statutory requirement that a CAA Section 112 standard apply continuously.

On August 26, 2009 (74 FR 43124), EPA announced the availability of a letter in which the agency addressed concerns that have been raised regarding the impact of the court's decision. According to the agency, the DC Circuit Court's decision immediately affects only those MACT standards that incorporate by reference the MACT general provision exemption for periods of start-up, shutdown, and malfunction, and contain no other regulatory text exempting or excusing compliance during start-up, shutdown, and malfunction events. MACT standards that include provisions that provide an exemption during periods of start-up, shutdown, or malfunction are not immediately affected because those provisions were not challenged in Sierra Club.

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