EPA Proposes to Eliminate Affirmative Defense for Exceedances of Emission Limits During Emergencies

Posted Wednesday, June 22nd, 2016 by Joseph A. Brown

On June 14, 2016, the U.S. Environmental Protection Agency (EPA) published a proposal to eliminate provisions in federal operating permit regulations (40 C.F.R. 70.6(g) and 71.6(g)) under Title V of the Clean Air Act that provide an affirmative defense for exceedances of technology-based emission limits during emergencies. The Florida Department of Environmental Protection’s standard Title V operating permit appendices include a provision that is based on these federal provisions.

EPA’s action is based on the same D.C. Circuit Court opinion, NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), which found affirmative defenses invalid in federal standards for hazardous air pollutants under Section 112 of the Clean Air Act. This same opinion is also the basis of EPA’s final action directing 36 states to revise provisions in their state implementation plans addressing emissions in excess of normal operating limits during startup, shutdown, and malfunction (80 Fed. Reg. 33,840 (June 12, 2015), the SSM SIP Call).

The comment deadline on EPA’s proposal is August 15, 2016.

For additional information contact Joseph Brown.

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