Startup, Shutdown, and Malfunction Excess Emissions: What EPA's Partial SIP-Call Withdrawal Changes — and What It Doesn't
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Startup, Shutdown, and Malfunction Excess Emissions: What EPA's Partial SIP-Call Withdrawal Changes — and What It Doesn't

EPA's June 12, 2026 partial SSM SIP-call withdrawal released six states — but your permit limits didn't change. What survives in your state, explained.

by iSi Environmental

EPA just released six states from the startup, shutdown, and malfunction (SSM) SIP call. Your permit didn’t change.

That’s the one-sentence version of the final action EPA published on June 12, 2026 — a partial withdrawal of its findings that 13 state and local air agencies failed to submit SIP revisions required by the 2015 SSM SIP Call (91 FR 35628, FR doc 2026-11884), effective July 13, 2026. If you manage air compliance at a permitted source, you’re going to hear this action described as “EPA killed the SSM rules” and “excess emissions exemptions are back.” Both readings are wrong, and acting on either one is how a facility ends up explaining a deviation to a regulator with no defense on paper.

Here’s what actually happened, which states it touches, and what it means for excess emissions during startup, shutdown, and malfunction events at your facility.

What Did EPA Actually Do on June 12, 2026?

EPA withdrew — for specific provisions in specific jurisdictions — its earlier findings that states had failed to submit the corrective SIP revisions demanded by the 2015 SSM SIP Call (80 FR 33840). The withdrawal implements the D.C. Circuit’s 2024 decision in Environmental Committee of the Florida Electric Power Coordinating Group v. EPA, 94 F.4th 77 (Florida Electric), which partially vacated the 2015 SIP call (decision discussed at 91 FR 35628).

The practical mechanics: when EPA finds a state failed to submit a required SIP revision — as it did for 12 air agencies in January 2022 (87 FR 1680, FR doc 2022-00138) — two Clean Air Act clocks start running: mandatory sanctions under CAA §179(a)–(b) and EPA’s obligation to promulgate a Federal Implementation Plan under CAA §110(c). The June 12 withdrawal stops those clocks for the provisions listed in the rule’s Table 3, covering six air agencies. The states no longer owe EPA a corrective SIP submission for those provisions (91 FR 35628).

Notice what’s missing from that description: nothing about your emission limits, your monitoring obligations, or your deviation reporting. This action changes which states owe EPA paperwork. It does not change what your facility owes anyone.

Does This Restore a Startup, Shutdown, and Malfunction Exemption for Excess Emissions at My Facility?

No — and this is the question that matters most, so it deserves a direct answer.

The withdrawal does not create or restore any exemption for excess emissions at your source. What it does is remove the federal pressure on certain states to delete certain SSM provisions from their SIPs. Where the SIP call was vacated for a provision, that provision remains part of the federally approved SIP — meaning a source may still be able to invoke it for qualifying startup, shutdown, or malfunction events, exactly as it could before 2015.

But three things constrain that:

  1. The underlying emission limits never moved. Whatever happens to SSM exemption provisions, your permit’s emission limits and deviation-reporting duties remain enforceable during startup and shutdown unless your SIP expressly says otherwise (91 FR 35628). The classic case — opacity exceedances during cold start at a combustion source — is still a deviation you document and report.

  2. The burden of proof sits with you. Most state SSM formulations require the source to show the event was sudden and unavoidable, and that equipment was properly operated and maintained. That’s a documentation standard, not a free pass.

  3. EPA’s default frame hasn’t changed. EPA’s longstanding policy treats all excess emissions as violations, with enforcement discretion — not exemption — as the operating posture.

If your compliance strategy for startup and shutdown events was “the SSM provision covers us,” it was thin before June 12 and it’s exactly as thin after.

Which States Got Released — and Which Are Still on the Clock?

The withdrawal is partial in both senses: partial by jurisdiction and partial by provision type.

Released (Table 3 — findings withdrawn for listed provisions): Rhode Island, the District of Columbia, West Virginia, Alabama, Ohio, and South Dakota. For the specific provisions listed, the obligation to submit corrective SIP revisions is gone and the CAA §179 sanctions and §110(c) FIP clocks no longer apply (91 FR 35628, Table 3).

Still on the clock (Table 4 — findings remain in place for listed provisions): four jurisdictions keep live failure-to-submit obligations — the District of Columbia (20 DCMR §606.4), West Virginia (W. Va. Code R. §45-2-9.4), Shelby County/Memphis, Tennessee (Code §16-87), and Illinois (35 Ill. Admin. Code §§201.261, 201.262, 201.265). For those provisions, sanctions and FIP clocks continue as previously established (91 FR 35628, Table 4).

Note that DC and West Virginia appear on both lists — released on some provisions, still obligated on others. That’s how granular this action is, and it’s why “my state got released” is not a sentence you should say until you’ve checked which provision you’re relying on.

For sources in the south-central region: Arkansas — the one original SIP-call state in iSi’s primary footprint among the 13 listed agencies — submitted a corrective SIP revision that EPA fully approved, so its obligation is fulfilled. Kansas, Missouri, Nebraska, Oklahoma, and Texas are not subject to this withdrawal action at all. Texas sources should be careful here: Texas’s SSM affirmative-defense provisions carry their own Fifth Circuit litigation history and were handled in separate EPA actions — read your specific SIP provisions, don’t read across from this rule (91 FR 35628).

Why Did the Court Vacate Some SSM SIP Calls and Affirm Others?

This is the part the headlines skip, and it’s required reading before you classify your own state’s provisions.

Florida Electric did not strike down the 2015 SIP call. It split it into two categories:

Vacated — SIP calls aimed at:

  • Automatic exemptions for SSM excess emissions
  • Director’s discretion provisions
  • Affirmative defenses that function as exemptions

Affirmed — SIP calls aimed at:

  • Overbroad enforcement-discretion provisions
  • Affirmative defenses against specific relief

For provisions in the affirmed category, the 2015 SIP call still stands — nationwide, not just in the 13 listed jurisdictions. States holding those provisions remain obligated to amend them (91 FR 35628, Section I). Reading the June 12 action as “the SSM rules are dead” gets the law backwards for half the provision types.

And the state-by-state cleanup is still actively moving in the other direction. Delaware’s corrective SSM SIP revision was approved as recently as April 30, 2026 (FR doc 2026-08373). Most of the 36 states covered by the original 2015 SIP call have resolved their obligations by amending their SIPs — meaning in most of the country, the SSM exemption provisions the 2015 action targeted are already gone, and this withdrawal does nothing to bring them back.

Didn’t Another Court Just Rule the Other Way on Affirmative Defenses?

Yes — and it’s why nobody should build a compliance strategy on either decision alone.

In SSM Litigation Group v. EPA, 150 F.4th 593 (D.C. Cir. 2025), the same court reversed EPA’s 2023 removal of affirmative-defense provisions from the Title V operating permit regulations — a pro-source ruling on a different regulatory instrument (discussed at 91 FR 35628, Section I). So within roughly eighteen months, the D.C. Circuit partially vacated EPA’s anti-exemption SIP action and separately reversed EPA’s anti-affirmative-defense Title V action.

The doctrine is unsettled. Affirmative-defense law for excess emissions is in active motion across at least three instruments — SIP provisions, Title V regulations, and EPA’s underlying SSM policy. Before relying on a state SSM defense in any enforcement posture, check your Title V permit shield language against what’s actually in your currently approved SIP, not against what a headline says the courts decided.

One more counter-signal worth knowing: four commenters on this withdrawal argued that the Illinois and West Virginia Table 4 provisions should also have been released. EPA ruled the request out of scope and deferred next steps (91 FR 35628, Section II). The remaining obligations were contested and may move again. This rulemaking is a waypoint, not an endpoint.

What Is the Enforcement Risk for Excess Emissions During Startup and Shutdown Now?

Unchanged in every way that touches your facility’s checkbook.

The withdrawal removes state submission obligations — it does not constrain enforcement against sources. Excess emissions that violate an applicable SIP emission limit remain federally enforceable violations, subject to civil penalties of up to $124,426 per day, per violation under the current inflation-adjusted schedule (40 CFR 19.4, penalties assessed on or after January 8, 2025; 90 FR 1375) — and to citizen suits under CAA §304, which operate regardless of agency enforcement priorities.

Where a vacated-category SSM provision remains in an approved SIP, a source may have a defense for qualifying events. But “may have a defense” and “is exempt” are different legal postures, and the difference is the event log, the work-practice documentation, and the deviation report you did or didn’t file. A facility that documents its startup sequences, minimize-emissions work practices, and malfunction response has something to put in front of a regulator. A facility that treated the SSM provision as blanket coverage has a penalty calculation.

Put the numbers side by side: one day of maximum CAA penalty exposure is $124,426. A year of structured compliance support that keeps your SSM documentation, deviation reporting, and permit strategy current costs a fraction of that single day. That asymmetry is the entire economic argument for getting this right before an event, not after.

What Should an Environmental Manager Do Before July 13, 2026?

Five specific moves, in order:

  1. Pull your state SIP’s SSM provisions and classify each one against the two Florida Electric categories. Automatic exemption, director’s discretion, or affirmative-defense-as-exemption → the SIP call was vacated and the provision remains part of the approved SIP. Overbroad enforcement discretion or affirmative defense against specific relief → the SIP call was affirmed and your state is still obligated to fix it (91 FR 35628).

  2. If you operate in DC, West Virginia, Illinois, or Memphis/Shelby County, track the Table 4 obligations. Sanctions and FIP clocks remain live for the listed provisions, which means those SSM rules are still headed for revision — plan for the provision you rely on to change.

  3. Keep documenting every startup, shutdown, and malfunction event as if no exemption exists. Event logs, minimize-emissions work practices, malfunction response records, and deviation reports under your permit’s reporting terms. This is what an affirmative defense is built from, and it’s also what keeps an enforcement-discretion conversation short.

  4. Check your Title V permit shield language before leaning on a state SSM defense. With SSM Litigation Group v. EPA reversing EPA’s Title V affirmative-defense removal, the interaction between your permit shield and your SIP’s SSM provision is facility-specific and worth a deliberate read.

  5. If your state is revising its SSM rules in response to the affirmed portions of the SIP call, comment. Delaware’s April 2026 approval shows this cleanup is still moving state by state — the comment window is where source-friendly defense language gets preserved or lost.

The Bottom Line

EPA’s June 12 action is real relief — for six state air agencies’ rulemaking calendars. For a permitted source, it changes almost nothing about the daily work: limits apply during startup and shutdown, excess emissions are deviations, deviations get documented and reported, and any defense you plan to assert is only as strong as the records behind it.

The genuinely hard part is the classification exercise — mapping your specific SIP provisions against the Florida Electric categories, your Title V shield language, and a body of case law that moved in opposite directions in 2024 and 2025. That’s a few hours of focused regulatory work that most plant environmental managers don’t have a clear week to do.

This is the kind of question iSi’s air compliance team handles for permitted sources every week — SIP provision review, deviation-reporting strategy, and permit support, either as a project or inside an EHS COOP retainer where the regulatory tracking is already running before the Federal Register publishes. If you want a straight answer on which SSM provisions actually apply at your facility, talk to us.

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