Sierra Club Asks D.C. Circuit to Review Affirmative Defense Provision in Air Rules

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June 17 --The Sierra Club requested that a federal appeals court review nine Environmental Protection Agency rules that contain language limiting the authority of federal district courts to impose civil penalties for Clean Air Act violations caused by malfunctioning equipment (Sierra Club v. EPA, D.C. Cir., No. 14-1110, 6/17/14).

The environmental group June 17 petitioned the U.S. Court of Appeals for the District of Columbia Circuit to review the EPA rules in light of an April decision by the court that struck down the affirmative defense in civil suits in the EPA's 2010 rule revising air toxics standards for cement kilns. The regulations identified by the Sierra Club include the EPA's 2012 final rule establishing national mercury and air toxics standards for power plants.

The affirmative defense provision insulates industry from being assessed civil penalties from regulatory violations resulting from unavoidable equipment malfunctions.

The D.C. Circuit upheld the cement kiln rule but vacated the affirmative defense language, determining that the EPA overstepped its legal authority when it attempted to limit the authority of federal district courts to impose civil penalties (NRDC v. EPA,, 2014 BL 108218, D.C. Cir., No. 10-1371, 4/18/14; .

Seth Johnson, an Earthjustice attorney representing the Sierra Club, told Bloomberg BNA June 17 that if it is illegal for the EPA to establish the affirmative defense in its cement kiln rule, it also is illegal for the agency to include the affirmative defense in rules establishing mercury and air toxics emissions limits for power plants and regulating emissions from chemical manufacturing facilities and other industrial sectors.

The Sierra Club also filed an administrative petition with the EPA June 17 requesting that the agency remove the affirmative defense provision from its air rules.

Nine Rulemakings Challenged.

The Sierra Club's lawsuit requests review of nine EPA regulations issued since March 2011 that contain the affirmative defense language. Those rules are:

  • a 2011 rule that established new source performance standards and emissions guidelines for sewage sludge incineration units located at wastewater treatment facilities (RIN 2060-AP90);
  • a 2011 rule that established hazardous air pollutant emissions standards for pharmaceuticals production, the printing and publishing industry, marine tank vessel loading operations and group I polymers and resins (RIN 2060-AO91);
  • a 2011 rule the revised hazardous air pollutant emissions standards for the primary lead processing source category (RIN 2060-AQ43);
  • a 2011 rule that revised hazardous air pollutant emissions standards for shipbuilding and ship repair (surface coating) and for wood furniture manufacturing operations (RIN 2060-AQ42);
  • a 2012 rule that established mercury and air toxics standards for power plants (RIN 2060-AP52, RIN 2060-AR31);
  • a 2012 rule that revised new source performance standards for nitric acid plants (RIN 2060-AQ10);
  • a 2012 rule that revised hazardous air pollutant emissions standards for the pulp and paper industry source category (RIN 2060-AQ41);
  • a 2012 rule that revised hazardous air pollutant emissions standards for hard and decorative chromium electroplating and chromium anodizing tanks; and steel pickling-HCl process facilities and hydrochloric acid regeneration plants (RIN 2060-AQ60); and
  • a 2012 rule that revised hazardous air pollutant emissions standards for chemical manufacturing area sources (RIN 2060-AQ89).
'After-Arising Grounds' Cited.

The Sierra Club said in the petition for review that it is basing its challenge on "after-arising grounds" stemming from the D.C. Circuit's April decision. That decision was the first time a court held that the EPA lacked the authority to promulgate an affirmative defense against civil penalties, according to the Sierra Club.

"We don't believe EPA had the authority to put it in and we want EPA to take it out," Johnson said.

The removal of the affirmative defense provision would be an "important step" in making EPA's air standards more meaningful, according to Johnson.

"Unless there are real teeth to the standards, it's just a piece of paper," he said.

The Sierra Club will now have 30 days to file its initial submissions in the lawsuit, according to Johnson.

By Patrick Ambrosio

To contact the reporter on this story: Patrick Ambrosio in Washington at pambrosio@bna.com

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


The petition for review in Sierra Club v. EPA is available at http://www.bloomberglaw.com/public/document/Sierra_Club_v_EPA_et_al_Docket_No_1401110_DC_Cir_Jun_17_2014_Cour.

The Sierra Club's June 17 petition to the EPA is available at http://op.bna.com/env.nsf/r?Open=fwhe-9l6r6u.