EPA Rule Requires 36 States to Revise Plans To Disallow Affirmative Defense Provisions

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By Amena H. Saiyid

May 22 — Coal-fired power plants, refineries and other industries in 36 states will no longer be insulated from Clean Air Act fines from excess emissions when equipment is starting up, shutting down or malfunctioning, under a final rule the Environmental Protection Agency issued May 22.

The rule (RIN 2060-AR68) gives the 36 states until Nov. 22, 2016, to revise their state implementation plans to disallow affirmative defense provisions that prevent industry from being fined for excess emissions.

The EPA is issuing the rule in response to a 2011 Sierra Club petition request, which sought to rescind portions of the agency's startup, shutdown and malfunction policy. The Sierra Club objected to the EPA's interpretation of the Clean Air Act to allow affirmative defense provisions in state implementation plans.

The affirmative defense provisions in question insulate industry from being subject to civil penalties for Clean Air Act violations that occur due to unavoidable equipment malfunctions.

The rule amends 40 C.F.R. pt. 52.

No Costs Involved

The EPA estimates the final rule will not impose costs on industry because it affects states that have to revise their SIPs.

The agency issued the final rule under Clean Air Act Section 110(k)(5), which provides a mechanism commonly known as a “SIP call” for correcting state implementation plans. The Sierra Club had sought a “SIP call” for 38 states that allowed the affirmative defense provision. The EPA said it was issuing it for only 36 states, which include Indiana, Louisiana, Texas, West Virginia and California.

The EPA said in the final rule that Wyoming and Kentucky already had revised their SIPs between the time the rule was proposed and finalized.

Responding to Court Decision 

The EPA proposed the rule in February 2013, and supplemented the proposed rule in September 2014.

The supplemental rule followed the April 2014 decision by the U.S. Court of Appeals for the District of Columbia Circuit over an air toxics rule challenge. The court struck down the affirmative action provision that EPA had promulgated hazardous air emissions standards for Portland Cement in NRDC v. EPA (749 F.3d 1055, 78 ERC 1369, 2014 BL 108218 (D.C. 2014)).

The underlying proposed rule by the EPA would have allowed states to provide an affirmative defense for excess emissions during equipment malfunctions, but not during startup and shutdown operations, when emissions tend to be higher than during normal operations.

Affirmative Defense ‘Not Appropriate.'

In doing away with the affirmative defense provision, the EPA acknowledged that affirmative defense provisions are not appropriate under the Clean Air Act, “no matter what type of event they apply to, what criteria they contain or what forms of remedy they purport to limit or eliminate.”

The EPA in the final rule made it clear that the lack of affirmative defense provisions in SIPs does not alter the legal rights of industrial sources under the Clean Air Act. “In the event of an enforcement action for an exceedance of a SIP emission limitation, a source can elect to assert any common law or statutory defenses that it determines are supported, based upon the facts and circumstances surrounding the alleged violation,” the EPA said.

The Sierra Club and Earthjustice were pleased with the final air rule.

“This is a strong rule, very solid on environmental justice,” Terry McGuire, Washington representative of the Sierra Club, told Bloomberg BNA May 22.

Significant Impact in 36 States

McGuire said the rule would have a significant impact in the 36 affected states, despite the fact that there will be a period of implementation.

Seth Johnson, an Earthjustice attorney, said in a May 22 statement that the final rule will close Clean Air Act loopholes that refineries and power plants have used to avoid compliance, and fines for violations.

“Communities depend on meaningful, enforceable standards to protect them against harmful air pollution,” Johnson said. “By taking action to close illegal loopholes in state plans, EPA’s taken an important step toward protecting communities’ health and bolstering their important right to protect themselves against the noxious air pollution that burdens them.”

Johnson told Bloomberg BNA May 22 that the final rule was a positive step, but the EPA needs to promulgate a national rule eliminating the exemptions for emissions released by industries during startup, shutdown and malfunction of equipment. He said coke ovens and municipal waste combustors remain exempt, while paper mills continue to utilize the affirmative defense provision.

Speaking on behalf of the industry, Richard Alonso, a partner at Bracewell & Giuliani LLP and a former official with the EPA's Office of Enforcement and Compliance Assurance, said the final rule opens the door to more litigation of industry by environmental groups.

Open Door to Litigation 

“What this does is allow environmental groups to sue industry for not meeting limits that during certain times are infeasible to meet,” Alonso said. He also noted that the agency has reversed its startup and shutdown policy that has been in place since the 1970s.

“This is EPA imposing a lot of more burden on states, telling states they have been implementing Clean Air Act incorrectly for the last 30 or 40 years. I expect states to be upset and will likely litigate on this,” Alonso said.

The environmental justice community also was pleased with the final EPA rule even though the agency said it cannot geographically locate or quantify the resulting source-specific emissions. “Nevertheless, the EPA believes this action will provide environmental protection for all areas of the country,” the agency said in the final rule. “Members of the Environmental Justice Leadership Forum on Climate Change have been awaiting this final decision from the EPA to close loopholes and hold polluters responsible for these fugitive emissions that have gone unaccounted for too long,” said Jalonne L. White-Newsome, a spokeswoman for the leadership forum, in a May 22 statement.

She said the rule is “a step in the right direction to protect low-income and communities of color that continue to be inundated with multiple sources of pollution.”

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

A prepublication version of the final EPA startup, shutdown and malfunction rule is available at http://www.epa.gov/airquality/urbanair/sipstatus/docs/20150522fr.pdf

A fact sheet that highlights the EPA's final startup, shutdown and malfunction rule is available at http://www.epa.gov/airquality/urbanair/sipstatus/docs/20150522fs.pdf

For more information about the rule, contact either Lisa Sutton at (919) 541-3450 or e-mail at sutton.lisa@epa.gov, or Geoffrey L. Wilcox at (202) 564-5601 or e-mail at wilcox.geoffrey@epa.gov.