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EPA Proposes to Eliminate Affirmative Defenses for Many Clean Air Act Violations

The U.S. Environmental Protection Agency (EPA) issued a proposed rule on September 5, 2014 that would prevent states from including affirmative defenses in their Clean Air Act state implementation plans (SIPs) for emissions exceedances that occur during startup, shutdown and malfunction (SSM) periods.  The proposal would also require several states to revise their existing SIPs so as to conform with EPA’s new approach to affirmative defenses.

EPA’s proposal modifies an earlier February 2013 proposal and arises from a Sierra Club petition asking EPA to revise roughly 40 different SIPs.  Under the new proposal, EPA would largely grant Sierra Club’s petition rather than granting it only as to certain types of affirmative defenses, as EPA had previously proposed.   A list of the states affected by the proposed rule can be found on EPA’s rulemaking website.  If the rule is finalized as proposed, those states will have 18 months from the date of the final rule to submit revised SIPs.

EPA has long allowed the use of affirmative defenses in SIPs, with at least one court holding that it has the authority to do so.  But in April of this year, the D.C. Circuit held that the plain language of the Clean Air Act prohibits EPA from including affirmative defenses in its own non-SIP regulations under Clean Air Act Section 112.  EPA’s September 5 proposal extends the logic of that decision to the SIP context.  But regulated parties should also be aware that the new proposal provides a good illustration of EPA’s “Next Generation Compliance” initiative in action.  The proposal is consistent with the agency’s stated desire to simplify its regulations by reducing the number of exceptions contained in those regulations.

Regulated parties may fear that under EPA’s new proposal they will be unduly penalized for emissions exceedances caused by events beyond their control.  They can take some comfort in understanding that even without affirmative defenses, the Clean Air Act’s penalty provisions do allow the agency and the courts some discretion in setting penalty amounts.  Thus, going forward, facility owners that experience an emission exceedance because of events beyond their control can still argue, on a case-by-case fact-specific basis, that it would be inappropriate to impose any penalties.

Comments on EPA’s proposal are due by November 6, 2014, and, under the terms of a settlement agreement with Sierra Club and WildEarth Guardians, EPA is required to issue a final rule by May 22, 2015.

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EPA Proposes to Approve Texas State Implementation Plan

by Ari Peskoe

The U.S. Environmental Protection Agency (EPA) recently proposed to approve revisions to Texas’s air pollution permitting program.  These revisions, which requires EPA’s approval pursuant to the Clean Air Act, would bring Texas’s State Implementation Plan (SIP), in compliance with federal standards and additionally establish a Plant-wide Applicability Limits (PALs) program in the state. 

Under the federal Clean Air Act, states are authorized to develop their own permitting programs, as long as they meet minimum national standards set by Congress and EPA.  The proposed revisions to Texas’s SIP will update its New Source Review (NSR) Program, which requires that entities constructing or modifying major air pollution sources obtain a permit prior to construction.  The state’s proposed revisions include an update to the method for evaluation of ozone standards in NSR applications to bring it into compliance with a 2006 D.C.  Circuit Court decision, an administrative timing change that may change which air quality standards are applied to a permit, and the establishment of a PALs program. 

A PAL establishes a site-wide emissions limit for an existing source. By using a PAL, an owner or operator can make changes that increase an individual units’ pollutant emissions so long as plant-wide actual emissions do not exceed its PAL.  PALs provide increased operating flexibility for owners and operators, and create an incentive for owners and operators to employ innovative control technologies and pollution control measures to reduce emissions and enable economic expansion.  According to the EPA, the the Texas PALs program will reduce emissions because a PAL is based on actual emissions, which are generally less than the emissions allowed under current permits.  EPA concluded that Texas’s new rules were at least as stringent as the applicable federal regulations and should have the same impact as the federal PAL rules. 

Existing major stationary sources that meet certain criteria will be eligible for a PAL. PALs are pollutant-specific and issued for ten-year terms.  Baseline emissions under a PAL are established using any consecutive 24-month period in the last ten years. Emissions calculations include emissions from startups, shutdowns and malfunctions and are adjusted to account for units that have been permanently shut down and potential emissions from units constructed after the baseline period.  To obtain a PAL, a facility owner or operator must submit a permit application to the Texas Commission on Environmental Quality. PAL applications are subject to public notice and comment.

Once EPA’s proposed approval of Texas’s revised SIP is published in the Federal Register, EPA will accept public comments for 30 days. 

*Jessica Bayles, a summer associate in the McDermott’s Washington D.C. office, contributed to this article.

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