1. MACT SSM - The New Approach
“Affirmative Defense”
John P. Egan
All4 Inc.
All4 Inc. Air Quality Training Seminar
Montgomery, AL
December 7, 2010
Your environmental compliance is clearly our business.

2. MACT SSM – Agenda
 Where it started
 How did it change
 The repercussions
 The new approach
 What do we do now
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3. Where It Started
 1990 CAA Amendments Section 112:
• Established original list of 189 hazardous
air pollutants (HAPs)
• NESHAP for Source Categories – 40 CFR
Part 63
• Included General Provisions for all source
categories in Subpart A
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4. Where It Started
 1994 - Part 63 Subpart A General
Provisions included “General Duty”
clause to minimize HAP emissions at
all times.
 Unique provisions for
startup, shutdown, and malfunction
(SSM) events were included in
§63.6(f)(1) and §63.6(h)(1).
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5. Where It Started
 Provisions in §63.6 allowed that
exceedances of MACT standards
during SSM events were not a violation
of the standard so long as:
• SSM Plan established, followed, and
updated as necessary
• Requisite
maintenance, recordkeeping, and
reporting conducted
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6. Where It Started
 Original 1994 rule included provisions
to avoid creating a “blanket exemption”:
• Sources comply with SSM plans during
events
• SSM plans be reviewed and approved by
permitting authorities through Title V
• SSM plans be available to the public
• SSM plan provisions be directly
enforceable federal requirements
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7. How Did It Change
 2002 U.S. EPA made changes to General
Provisions and removed requirement that
SSM plans be incorporated in Title V
permit:
• Only required to adopt plan and follow it
• Plans could be revised without formal
approval
• Plans only available to public on request
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8. How Did It Change
 In response to 2002 SSM changes
Sierra Club filed petition for
reconsideration.
 U.S. EPA settled with agreement that
SSM plans needed to be submitted with
Title V permit application.
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9. How Did It Change
 In 2003 U.S. EPA further relieved the
SSM burden – public now had to make
a “specific and reasonable request” to
permit authority to review sources SSM
plans.
 Sierra Club and NRDC both filed suit.
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10. How Did It Change
 2006 U.S. EPA went further and
retracted requirement that sources
implement SSM plan during an SSM
event:
• Plan specifics no longer applicable
requirements under Title V
• General Duty remained in affect
• Reporting requirements would suffice to
justify no exceedance during event
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11. How Did It Change
 2006 U.S. EPA also:
• Clarified that reporting and recordkeeping
only required when a S/S caused an
exceedance and for a malfunction
w/potential exceedance
• Eliminated requirement for administrator to
obtain copy of SSM plan upon public
request
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12. The Repercussions
 2008 federal court concluded that:
“Because the general duty is the only
standard that applies during SSM events –
and accordingly no section 112 standard
governs these events – the SSM exemption
violates the CAA’s requirements that some
section 112 standard apply continuously.”
 As a result the court vacated the SSM
exemption provisions.
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13. The New Approach
 U.S. EPA has determined that MACT
standards apply at all times:
• Current and/or new standards established
for startup and shutdown conditions
• Malfunctions are subject to standards for
normal operations
• “Affirmative Defense” provided for
malfunction events
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14. The New Approach
 Startup and shutdown standards:
• Cement kiln MACT, Subpart LLL final in
September 2010 included separate
standards for S/S
• Sewage sludge incinerator proposed
Section 129 standards October 2010
maintained same standards during S/S
• Six (6) proposed new MACT standards in
October 2010 maintained same standards
during S/S
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15. The New Approach
 Affirmative Defense means:
• “In the context of an enforcement
procedure, a response or a defense put
forward by a defendant, regarding which
the defendant has the burden of proof, and
the merits of which are independently and
objectively evaluated in a judicial or
administrative proceeding.”
• Each of the new/proposed MACT rules
includes the same definition
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16. The New Approach
 To establish an affirmative defense must provide
timely notification and prove by a preponderance
of evidence that:
1. Excess emissions were caused by a
sudden, short, infrequent, and unavoidable
failure…
2. Repairs were made as expeditiously as
possible…
3. Frequency, amount, and duration of excess
emissions were minimized to maximum
extent…
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17. The New Approach
 To establish an affirmative defense
(cont’d):
4. If due to bypass, unavoidable…
5. All possible steps to minimize ambient
impact were taken…
6. Monitoring and controls remained in
operation if possible…
7. Actions in response to excess emissions
were documented…
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18. The New Approach
 To establish an affirmative defense
(cont’d):
8. At all times facility was operated in manner
consistent with good practices for
minimizing emissions…
9. Owner or operator has prepared a root
cause analysis to determine, correct, and
eliminate the primary cause of the
malfunction…
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19. The New Approach
 To establish an affirmative defense a
timely notification includes:
• Phone or fax Administrator notice within two
(2) business days of initial occurrence of
excess emissions
• A written report to the Administrator within
thirty (30) days of initial occurrence of
excess emissions
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20. What Do We Do Now
 Comply with all standards including S/S
 If malfunction occurs and results in excess
emissions – guilty of violation:
• Potential relief from civil penalties using
affirmative defense provision
• SSM plans no longer required but can serve
as the basis for meeting affirmative defense
• Review malfunction history and eliminate
issues
• Be prepared to report exceedances
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