Jump to Navigation
Jump to Content

EPA's Startup, Shutdown, and Malfunction Policy: "The Cart and the Horse Are In the Ditch"

July 2005

Citation: 35 ELR 10474

Issue: 7

Author: John C. Evans and Donald R. van der Vaart

Editors' Summary: On December 14, 2004, the U.S. District Court for the Northern District of Georgia ruled that a series of EPA policy memoranda aimed at addressing excess emissions that occur during startup, shutdown, and/or malfunction (SSM) superceded part of Georgia's EPA-approved SIP that allowed, under certain conditions, excess emissions that occur during SSM conditions. The authors argue that this case is notable for two reasons. First, more than one-half of the air regulatory agencies in the country have SIPs that include a provision similar to the Georgia SSM condition. If the court's decision in Sierra Club v. Georgia Power Co. is upheld on appeal, the result will be to throw the entire CAA §110 SIP structure into jeopardy because it effectively renders the entire SIP submittal and approval process superfluous. Second, the decision highlights several common misconceptions about EPA's SSM policy memoranda. This Article provides a critical analysis of the court's decision in Sierra Club v. Georgia Power Co. and in doing so addresses these two important concepts.

John C. Evans is an Assistant Attorney General with the North Carolina Department of Justice (NCDOJ) and General Counsel for the nonprofit Environmental Science and Law Institute. He received a B.S. in mechanical engineering from the University of North Carolina at Charlotte and a J.D. from North Carolina Central University. The views expressed in this Article are solely those of the author and do not reflect the position of the NCDOJ. Donald R. van der Vaart, Ph.D., is adjunct associate professor with the Environmental Engineering Department at North Carolina State University and Executive Director of the Environmental Science and Law Institute. Dr. van der Vaart graduated from the University of Cambridge (England) with a Ph.D. in chemical engineering and is a registered engineer in North Carolina.

Download Article >>>