October 6, 2014
In April 2014 the Washington D.C. Circuit Court struck down the part of EPA’s cement kiln rule that would have provided an affirmative defense to civil penalties for excess emissions resulting from unavoidable malfunctions. As noted at the time, that decision clearly had implications beyond the cement kiln rule according to a September 9, 2014 post by Seth Jaffe in Law and Environment.
Those implications were made more concrete on September 17, 2014 when EPA issued a supplemental notice of proposed rulemaking in which it proposed to rescind its policy allowing affirmative defenses to penalties for excess emissions during startup, shutdown, or malfunction (SSM) events. Moreover, EPA proposes to reject SSM affirmative defenses in 17 existing State Implementation Plans (SIPs).
An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct.
The EPA announced that they will hold a public hearing on October 7th in Washington, D.C. on the proposal (RIN 2060-AR68) that, if approved, would no longer allow SIP’s to include affirmative defense provisions for malfunctions therein protecting facilities from civil penalties for violations that may occur during startup, shutdown or a malfunction. Comments on the proposal will be accepted through November 6, 2014. EPA has published a fact sheet for more information.
What this means to you
In total, the EPA is proposing findings that the SSM provisions in the SIPs of 17 states do not meet the requirements of the Clean Air Act with respect to affirmative defense provisions. See a list of affected states at the end of EPA’s fact sheet.
MIRATECH can help
Contact MIRATECH if your operation is in an EPA targeted state to discuss greater control of SSM emissions.