The Environmental Protection Agency (EPA) has proposed a significant update to its air pollution regulations by removing the "affirmative defense" provisions from specific New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP). This change comes in response to a 2014 D.C. Circuit court decision that vacated an affirmative defense provision, ruling that the EPA lacks the authority to determine civil penalties in private civil suits, a power that lies exclusively with the courts. As a result, the EPA is now removing affirmative defense provisions from multiple regulations under the Clean Air Act (CAA) Sections 111 and 112.
What Is an Affirmative Defense?
An affirmative defense allowed facilities to avoid civil penalties during instances of noncompliance caused by equipment malfunctions, provided the facility could prove it took all reasonable steps to minimize emissions and correct the issue. These malfunctions were defined as sudden, infrequent, and unavoidable failures of air pollution control equipment, and facilities had to meet specific reporting requirements to qualify for the defense. While this provision protected companies from fines if they acted in good faith, it is no longer permissible under the updated rules.
Key Impacts of the Removal
Increased Risk of Penalties Without the affirmative defense, facilities will no longer have the automatic opportunity to avoid penalties for emissions exceedances due to malfunctions. All malfunctions that lead to noncompliance with emission standards will be subject to judicial review, and facilities could face civil penalties, regardless of the circumstances surrounding the violation.
Higher Compliance Burden Facilities will need to take extra precautions to ensure equipment is maintained and that malfunction risks are minimized. This could lead to increased costs associated with enhanced operational oversight, better planning, and more comprehensive maintenance practices to avoid any unintentional breaches of emission standards.
Judicial Discretion in Penalties By removing the affirmative defense, the EPA is placing the responsibility of determining penalties into the hands of courts. This creates uncertainty for facilities, as judicial discretion will now play a larger role in the outcomes of noncompliance cases, leading to potentially unpredictable penalties based on the specific facts of each case.
Broader Implications for Permit Compliance For many industries subject to NSPS and NESHAP regulations, this change requires a closer review of operating procedures and reporting practices. Facilities must ensure compliance not only during normal operations but also in managing malfunctions, which could now result in significant legal and financial consequences if emission standards are violated.
Preparing for the Change
As these provisions are removed, facilities should take the following steps to mitigate the risks of noncompliance:
Review Maintenance and Inspection Protocols: Ensure that all air pollution control and monitoring equipment is in optimal working condition and that regular inspections and maintenance are conducted to reduce the risk of malfunction.
Develop Contingency Plans: Create clear action plans for handling equipment failures, including rapid repair protocols and immediate notification procedures to the EPA.
Engage Legal Counsel: Work with environmental law experts to understand how this rule change may affect existing compliance strategies and prepare for possible legal challenges in the event of a malfunction.
Conclusion
The EPA’s removal of affirmative defense provisions is part of an ongoing effort to strengthen environmental enforcement and place greater accountability on facilities for controlling their emissions. While this move increases the compliance burden on industries, it also emphasizes the need for robust maintenance and planning practices to prevent equipment malfunctions. Facilities should begin preparing now to ensure they are ready to meet these new regulatory requirements and minimize their risk of costly penalties.
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