Hopping Green & Sams

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Tallahassee, Florida 32314

EPA Proposes to Invalidate State Provisions that Provide a Defense for Emissions from Malfunctions

Posted Wednesday, September 17th, 2014

On September 17, 2014, the U.S. Environmental Protection Agency (EPA) published a proposal  that would find provisions in 17 state implementation plans (SIP(s)) (not including Florida’s) inadequate under the Clean Air Act for providing an affirmative defense to civil penalties for excess emissions arising from malfunctions.  EPA’s proposal supplements a prior February 12, 2013, proposal  in which EPA proposed finding that SIP provisions in 36 states (including Florida) were inadequate under the Clean Air Act for either allowing excess emissions during startup, shutdown, and malfunctions or providing an affirmative defense to civil penalties for excess emissions during startup and shutdown.  EPA’s prior proposal also provided, however, that affirmative defenses for excess emissions from malfunctions were allowed.  EPA’s supplemental proposal reverses this position on the basis of a recent D.C. Circuit Court of Appeals decision, NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), which invalidated a malfunction-related affirmative defense provision EPA promulgated as part of emission standards for portland cement facilities under the Clean Air Act’s hazardous air pollutant provisions.  While the D.C. Circuit explicitly declined to address whether such an affirmative defense was inappropriate in a SIP and further noted that the Fifth Circuit Court of Appeals recently upheld EPA’s partial approval of a SIP-based affirmative defense provision, EPA’s supplemental proposal nevertheless extends the D.C. Circuit’s decision to rescind EPA’s prior interpretation approving of SIP provisions that provide an affirmative defense for malfunctions. The supplemental proposal does not affect any other aspect of EPA’s prior February 2013 proposal.

While Florida’s SIP does not currently include an affirmative defense provision for excess emissions from malfunctions and is therefore not directly affected by EPA’s supplemental proposal, it would impact Florida’s ability to promulgate an affirmative defense for malfunctions in the future. Comments on the supplemental proposal are due by November 6, 2014.  EPA is currently subject to a May 22, 2015, deadline to finalize both its original and supplemental proposals.  EPA is expected to give states 18 months to revise SIP provisions identified as inadequate in its final rule.

For additional information contact Joseph Brown.

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