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On June 14, 2016 EPA published in the federal register a proposed rule to remove the affirmative defense provisions in 40 CFR Part 70 and 71 from state and federal operating permit programs, respectively. These provisions currently provide the basis for affirmative defense, which may provide relief to companies when noncompliance with certain emission limitations in operating permits occurs because of qualifying emergency circumstances. The proposed removal of these provisions continues EPA’s trend of eliminating affirmative defense provisions in various federal regulations.


In 2010, the D.C. Circuit Court of Appeals ruled that the affirmative defense provision in the National Emission Standards for Hazardous Air Pollutants (NESHAP) for portland cement facilities had exceeded the EPA’s statutory authority, and that only the courts have the authority to decide whether to assess penalties for violations in civil suits. The ruling further detailed that civil penalties should be handled on a case-by-case basis by the courts, rather than by EPA.


Although the D.C. Circuit Court’s decision was specific to a NESHAP provision, EPA interprets the decision to be relevant to other similar affirmative defense provisions. For example, on June 15, 2015 EPA issued a “SSM SIP Call” for states to address affirmative defense provisions in their state implementation plans (SIPs) for startup, shutdown, and malfunction (SSM) events. Furthermore, as part of EPA’s effort to harmonize both its enforcement strategy and its approach for implementing emission limitations across different Clean Air Act (CAA) programs, EPA has now proposed to remove the affirmative defense provisions located at 40 CFR 70.6(g) and 71.6(g) from the Title V operating permit programs.


It may be necessary for any states that have adopted similar affirmative defense provisions into their part 70 operating permit programs to revise their program regulations to remove these provisions. In addition, the EPA expects that these states would coordinate revisions of individual operating permits to remove similar affirmative defense provisions.


Comments on this proposed rule, including comment on the potential consequences of the proposed removal of the emergency affirmative defense provisions, are being accepted through August 15, 2016.