Final Rule: EPA Removes Automatic Exemption under Clean Air Act for Excess Emissions During Startup, Shutdown, and Malfunction [US]

On May 22, 2015, the U.S. Environmental Protection Agency (EPA) finalized a rule that would require 36 states to revise their state implementation plans (SIPs) to remove industry exemptions from fines for excess air pollution emissions during periods of startup, shutdown, and malfunction.

Clean Air Act compliance : What deadline is imposed by this amendment ?

This amendment to the Clean Air Act’s regulations imposes a deadline of November 22, 2016 on these states to revise their SIPs.

  • In 2011, the Sierra Club objected to the EPA’s allowance of affirmative defense provisions in SIPs for industries during startup, shutdown, and malfunction. Many SIPs, which are written for areas that fail to meet regulated air pollutant emission standards, contain such provisions that shield industry from Clean Air Act civil liability under the rationale that excess emissions are unavoidable during these periods. In response to the Sierra Club’s petition for a rulemaking, the EPA has amended 40 CFR Part 52 to require the 36 states that have these affirmative defense provisions to remove them from their SIPs.
  • While facilities that are fined for excess emissions in this circumstance will no longer have this particular automatic defense when their state revises its SIP, sources may still assert other supported defenses in an enforcement action. States may also choose to litigate this rulemaking on the grounds that it imposes a burden on them to revise their SIP’s affirmative defense provisions, many of which have been in place for 30 or 40 years.

Red-on-line EHS Legal Specialist

Sources:

State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA’s SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction, Prepublication Version, May 22, 2015.

NRDC v. EPA (749 F.3d 1055, 78 ERC 1369, 2014 BL 108218 (D.C. 2014)).

40 CFR Part 52