EPA Renews Efforts To Abolish The Clean Air Act Affirmative Defense; Opportunities For Industry Involvement

• Published date: 28 April 2022
• Subject Matter: Environment, Environmental Law, Clean Air / Pollution
• Law Firm: Beveridge & Diamond
• Author: Ms Madeleine Boyer, Laura LaValle, Stephen Richmond, Jennifer Leech and Zachary B. Pilchen

U.S. Environmental Protection Agency (EPA) is moving aggressively to reinstitute sweeping revisions to its affirmative defense and startup, shutdown, and malfunction (SSM) exemptions under the Clean Air Act (CAA) that would have far-reaching implications for industry operations. Industry has two opportunities to provide input: first by commenting on EPA's proposed rule to remove affirmative defenses from its Title V operating permit regulations (deadline for comments is May 16, 2022), and second, by responding to a proposed state implementation (SIP) call that would impose deadlines for EPA to remove the SSM provisions of ten states in the next two years (deadline for comments is May 11, 2022).

On April 1, 2022, EPA re-proposed an Obama-era rulemaking to remove provisions from its Title V operating permits regulations that allow industry to assert affirmative defenses for CAA permit violations from upset and emergency emissions releases. 87 Fed. Reg. 19,042 (Apr. 1, 2022). EPA originally proposed to repeal the longstanding affirmative defense provisions in 2016 during the Obama Administration, but the Trump administration withdrew the proposal. Beveridge & Diamond wrote about the original proposal here.

Now EPA seeks to move forward with its original proposal once again. EPA is accepting new comments on the proposal and will consider comments submitted in connection with the 2016 proposal. Accordingly, EPA indicated that comments previously provided regarding the 2016 proposal do not need to be resubmitted. EPA envisions that any current permitting provisions that include or recognize affirmative defense provisions would remain intact until their renewal and would be dropped during removal.

For 30 years, federal CAA Title V operating permit regulations and the vast majority of SIP-approved state and tribe rules have included affirmative defense provisions that take into account emergency situations. Emergency events involve "sudden and reasonably unforeseeable events beyond the control of the source" that unavoidably cause emissions to exceed technology-based limits in the permit. With successful demonstration of the affirmative defense, a source can avert or mitigate civil enforcement.

In the proposal, EPA reasserts its position that affirmative defense provisions are "inconsistent with the enforcement structure of the CAA" and opinions of the D.C. Circuit. The applicability and scope of malfunction-related provisions was first challenged in 2008 by the...