EPA Proposes To Eliminate Startup, Shutdown, And Malfunction Affirmative Defenses Under Clean Air Act

The United States Environmental Protection Agency ("EPA") proposed on September 5, 2014 to prohibit excess emissions during periods of startup, shutdown, or malfunction ("SSM") in State Implementation Plans ("SIPs") under the Clean Air Act ("CAA"). EPA concluded that a recent court decision did not even allow EPA to approve the narrowly crafted provisions in SIPs allowing for excess emissions during malfunctions allowed by a previous EPA proposal. If finalized, this proposal means that governmental authorities implementing CAA provisions in 37 states and the District of Columbia would be required to revise existing regulations to remove SSM affirmative defenses.1

In February 2013, EPA issued a proposed rule finding that in 35 states and the District of Columbia SIPs contained SSM provisions inconsistent with the CAA. This finding was made in response to a Petition for Rulemaking filed with EPA by the Sierra Club on June 30, 2011. The February 2013 proposal concluded that affirmative defenses for emissions during periods of startup and shutdown are impermissible and that only affirmative defenses for emissions during malfunction were permissible, as long as the malfunction affirmative defenses met certain standards outlined in the proposal. The proposal was a significant reversal of nearly 30 years of EPA guidance, which recognized the difficulty of complying with emission standards during startup, shutdown, and malfunction. This previous proposal is discussed in detail in our Commentary, "EPA's Proposal Rule Regarding Treatment of Startups, Shutdowns, and Malfunctions under the Clean Air Act."

Before EPA finalized the February 2013 proposed rule, however, the D.C. Circuit issued a decision in National Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). In this case, the court held that the National Emission Standards for Hazardous Air Pollutant ("NESHAP") standard for Portland cement plants contained an impermissible affirmative defense to citizen suits for excess emissions during periods of unavoidable malfunction. The court reasoned that the affirmative defense provision inappropriately vested EPA with the authority to determine the scope of available remedies when Section 304(a) of the CAA clearly vested such authority in the courts and ultimately vacated the portion of the Portland cement NESHAP containing the affirmative defenses.

The NRDC v. EPA decision explicitly noted that the opinion was not addressing an affirmative...