U.S. EPA proposes to rescind a Clean Air Act policy shielding industrial facilities from civil lawsuits for violations occurring during equipment malfunctions

 EPA is proposing to rescind a Clean Air Act policy that allows industrial facilities to avoid civil lawsuits if an air emissions violation occurs during an equipment malfunction. Under the proposal, 16 states and the District of Columbia would be required to remove this “affirmative defense” provision from their state plans. The policy change comes on the heels of a U.S. Court of Appeals ruling striking down the affirmative defense for Portland cement kilns.

 EPA is proposing to rescind a Clean Air Act policy that provides industrial facilities with an affirmative defense to civil lawsuits if an air emissions violation occurs during an equipment malfunction. Environmentalists see the affirmative defense as a loophole that allows large industrial facilities to avoid penalties for air emissions that can harm local communities.

The policy change comes in response to petitions by the Sierra Club, which date back to 2011 when Sierra Club argued to EPA that the affirmative defense for periods of startup, shutdown, and malfunction was illegal. In February 2014, EPA amended its policy for periods of startup and shutdown, but retained the affirmative defense during periods of malfunction. In April the U.S. Court of Appeals for the District of Columbia ruled that EPA lacked authority to grant cement kilns an affirmative defense for violations occurring during malfunctions. As such, EPA has reconsidered their position, and is now rescinding the affirmative defense for malfunctions.

States with an implementation plan that include an affirmative defense provision are: Virginia, West Virginia, Georgia, Mississippi, South Carolina, Illinois, Indiana, Michigan, Arkansas, New Mexico, Texas, Colorado, Arizona, California, Alaska, and Washington.

EPA will accept public comment on the proposal until Nov. 6 and plans to hold a public hearing in Washington, D.C., on Oct. 7.

Sources :  Supplemental Notice of Proposed Rule Making: Amendment to Apply Affirmative Defense for Excess Emissions During Periods of Startup, Shutdown and Malfunction, Federal Register, 79 FR 55919, September 17, 2014