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EPA seeks to rid Title V program of SSM Affirmative Defense for emergencies.

June 29, 2016

The EPA continues to walk through its Clean Air Act (CAA) regulations, methodically removing affirmative defenses against civil penalties for violations of emissions requirements in startup, shutdown or malfunction (SSM) provisions.epa logo

In the latest action, the Agency published on June 14, 2016 a proposed rule in the Federal Register that would remove from Title V regulations the affirmative defense language state and federal Title V permitting programs now contain for violations of technology-based emissions requirements caused by emergencies, according to a June 15, 2016 report from EnviroBLR.com.

If the proposal as written is made final, states will have 12 months to remove such affirmative defense provisions and submit the revisions to the EPA. Under the proposal, a state would need to remove the affirmative defense provision on the first possible occasion it acts on an individual permit after the EPA approves the revision.

In the context of the CAA, the EPA for years operated under a policy that allowed affirmative defenses against civil penalties brought for emissions exceedances during emergencies, start-up, shutdown, and malfunctions provided the defendant met certain “objective criteria” (e.g., the excess emissions were caused by a sudden, unavoidable breakdown of technology beyond the control of the owner or operator; or the excess emissions could not have been avoided by better operation and maintenance practices).

All this changed in 2014 when the U.S. Court of Appeals for the D.C. Circuit ruled in NRDC v. EPA that under the CAA, the courts, not the EPA, have the authority to rule on whether civil penalties are appropriate. The D.C. Circuit explained that this restriction ensured that private citizens bringing suits alleging CAA violations receive a judicial decision in court and are not subject to EPA’s discretion.

While the D.C. Circuit’s case dealt specifically with a CAA Section 112 rule (National Emissions Standards for Hazardous Air Pollutants (NESHAP)), the basis for the decision is rooted in CAA sections that affect multiple federal regulatory air programs. Hence, the EPA has been removing the affirmative defense provisions from sets of regulations, including state implementation plan (SIP) requirements and New Source Performance Standards (NSPS) emissions guidelines for existing sources, as well as from many NESHAP regulations for specific source categories.

What this means to you
The EPA continues to walk through its Clean Air Act (CAA) regulations, methodically removing affirmative defenses against civil penalties for violations of emissions requirements in startup, shutdown or malfunction (SSM) provisions.

MIRATECH can help
Contact MIRATECH to learn more about emission control for your stationary engines during startup and shutdown situations.