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New EPA Rule Removes Emergency Defense Waiver in Title V Air Permits

 Daniel BLOG image from environblog.jenner.comBy: Daniel L. Robertson and Allison A. Torrence

On July 21, 2023, the Environmental Protection Agency published a final rule eliminating an affirmative defense for Clean Air Act permit emissions violations caused by
Smokestack“emergency” circumstances.

“Major sources” (i.e. sources with actual or potential emissions above certain emission thresholds) are required under Title V of the Clean Air Act to obtain operating permits. When the EPA originally promulgated rules implementing Title V, the proposed rules did not include an emergency affirmative defense provision. However, the EPA included the provisions in its final rule following requests from commenters. Specifically, 40 C.F.R. Parts 70.6(g) (state operating permit program) and 71.6(g) (federal operating permit program) contained identical affirmative defense provisions whereby a source could avoid liability for an emission violation if the violation was caused by an emergency “arising from sudden and reasonably unforeseeable events beyond the control of the source.” This included “acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency.” In such circumstances, a source could demonstrate an emergency affirmative defense by providing evidence that:

  1. An emergency occurred and the cause was identified;
  2. The facility was at the time being properly operated;
  3. The facility took all reasonable steps to minimize emission level exceedances and permit requirements during the emergency; and
  4. The permittee submitted notice of the emergency to the permitting authority within two working days.

The EPA’s attempt to remove the Title V emergency affirmative defense has been around since an initial rule proposal in 2016. However, later administrations did not pursue the proposal until a revised version was introduced in 2022. According to the EPA, the affirmative defense is “inconsistent with the EPA’s interpretation of the enforcement structure of the Clean Air Act in light of prior court decisions.” In one of those court decisions, Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), the D.C. Circuit Court of Appeals vacated a Title V permit provision that specified an affirmative defense for unavoidable malfunctions. The court held that the EPA exceeded its authority, as only the courts have the authority to decide whether to assess penalties for civil suit violations. The 2014 ruling was upheld in 2016, when the D.C. Circuit in U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016), reaffirmed that the EPA’s affirmative defense provision at issue intruded on the judiciary’s role in determining Title V permit violation penalties. Similarly, the D.C. Circuit in a 2008 case, Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), vacated an EPA rule exempting emission standards requirements during startup, shutdown or malfunction, finding such exemption in violation of Clean Air Act requirements. These decisions led EPA to revisit similar affirmative defense provisions, resulting in the latest rule.

The EPA states that the provisions’ removal is consistent with other EPA actions, specifically referencing removal or omission of similar affirmative defenses for New Source Performance Standards, emission guidelines for existing sources, and regulations for National Emission Standards for Hazardous Air Pollutants (NESHAP). According to the EPA, the latest action “would harmonize the EPA’s treatment of affirmative defenses across different [Clean Air Act] programs.”

As described in the rule summary, “any impermissible affirmative defense provisions within individual operating permits that are based on a Title V authority and that apply to federally-enforceable requirements will need to be removed.” The EPA has therefore instructed “any states that have adopted similar affirmative defense provisions” in operating permit programs to remove those provisions from their programs within twelve months of the rule’s August 21, 2023 effective date. The EPA expects the same revisions by local and tribal permit programs. Existing Title V operating permits “will eventually need to be revised” to remove language regarding affirmative defense provisions. These changes will likely occur during permit renewals or revisions.

The EPA does not believe the revisions will have a significant impact on sources, noting in the final rule that the Title V emergency defense provisions “have rarely, if ever, been asserted in enforcement proceedings.” Instead, sources more often assert affirmative defenses based on malfunctions, which were not addressed in this rule. In response to the potential chilling effect the rule may have on sources operating to provide vital services during an emergency, the EPA emphasized the enforcement discretion of oversight authorities, as well as accounting for emergency situations in determining remedies. The EPA further stated that the revisions will not restrict a source’s “ability to defend itself in an enforcement action” and that sources will still be able to seek the reduction or elimination of monetary penalties “based on the specific facts and circumstances of the emergency event.”

The proposed rule received significant comments, and legal challenges are likely to be forthcoming. We will continue to track this and other Clean Air Act developments on the Corporate Environmental Lawyer.