4 The record articles

Affirmative Defense is Vacated for the Cement Industry

Posted: April 24th, 2014

Author: All4 Staff 

I wrote a blog back in February that was intended to raise the awareness level of the cement industry regarding new requirements for their MACT operations and maintenance (O&M) plans.  As part of addressing action items related to that blog, many owners/operators that are affected by 40 CFR Part 63, Subpart LLL – National Emission Standards for Hazardous Air Pollutants (NESHAP) From the Portland Cement Manufacturing Industry (Subpart LLL) may have already started the process of converting their startup, shutdown, and malfunction plan (SSMP) into an O&M Plan or a Malfunction Plan that specifically addresses affirmative defense. 

During our April 16, 2014 webinar titled “The Future of Startup, Shutdown, and Malfunction (SSM),” we further recommended that owners/operators start considering how to address affirmative defense as it relates to MACT plans, training, reporting, etc. If you participated in that webinar, you will also recall a segment that encouraged owner/operators affected by NESHAPs to follow rule development and promulgation.  Ironically, the D.C. Court of Appeals (Court) published a change for the Subpart LLL rules less than two days after our SSM webinar.  Fear not, this blog provides a summary of what you now need to know about the most recent Subpart LLL changes.

As a reminder, the U.S. Environmental Protection Agency (U.S. EPA) amended Subpart LLL in February 2013.  Subpart LLL was the first MACT standard to be issued without an exemption for malfunctions; instead it contained provisions allowing for an affirmative defense to penalties.  EPA created the affirmative defense language in response to the Court’s October 16, 2009 vacatur of the MACT SSM excess emissions exemption. 

So What Changed And Why?

On April 18, 2014 the Court unanimously ruled (Natural Resources Defense Council v. U.S. EPA) to vacate U.S. EPA’s “affirmative defense” in Subpart LLL.  The affirmative defense exempted excess emissions due to equipment malfunctions from Clean Air Act penalties.  The Court has determined that the affirmative defense protected emitters from private civil enforcement suits, which exceeds the U.S. EPA’s statutory authority.  Specifically, the Clean Air Act allows individuals to file federal citizen suits against facilities that violate emissions standards.  The affirmative defense restricted a court’s ability to assess penalties.  In rendering its decision, the court concluded that U.S. EPA cannot carve out a special legal defense for plant operators to cite if they are sued by members of the public in the event of a plant malfunction. This decision now gives the courts control in deciding whether penalties are appropriate in a given civil suit.

What Stayed The Same?

The Court upheld the Subpart LLL emissions standards and the 2015 compliance date in the amended rule.  The emission standards are less stringent than what the environmentalists believed to be appropriate and were challenged in the same suit.  This is considered an important victory for the cement industry. 

Now What?

U.S. EPA has been incorporating the affirmative defense to address the elimination of the SSM exemption provisions in other MACT rules and even in other regulations like revised New Source Performance Standards.  The Court’s April 18th ruling means that any exceedance of an emission standard in Subpart LLL that results from a malfunction is a violation and subject to civil penalties.  When the change in Subpart LLL finds its way into other rules, the same will hold true and any relief from such penalties will involve courts and lawyers.  It will likely still be in your best interest to follow through and develop the data needed to support an affirmative defense against civil penalties but it will be even more important to maintain the highest level of effort around preventative maintenance activities to avoid malfunctions to the greatest extent possible.

If you still have unanswered questions or would like to learn how ALL4 can provide your organization with compliance assistance related to this and other air quality rules and regulations, please contact me at (610) 933-5246 x120 or at jkleinle@all4inc.com. If you were unable to attend our April 16, 2014 webinar on SSM and you would like a copy of the presentation materials, along with a recording of the session, please fill out the information here to download it.


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