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The Saga of the Affirmative Defense and Excess Emissions During Periods of Startup, Shutdown, and Malfunction Continues

Posted: September 19th, 2014

Authors: JP K. 

I felt that the Merriam-Webster dictionary definition for saga “a long and complicated story with many details” was appropriate for identifying the latest affirmative defense rulemaking action.  The saga continues, because a supplemental notice of proposed rulemaking (SNPR) to “affirmative defense” provisions in state plans was published in the September 17, 2014 Federal Register.

The purpose of this blog is to provide the following:

  1. Awareness of the action,
  2. A convenient reference to the SNPR, and
  3. A summary of some of the main items of the action taken by the U.S. EPA

If you read this far, I have already accomplished Nos. 1 and 2 above.  I would like to note that this action potentially affects all states, U.S. territories, local authorities, and eligible tribes because it is evaluating U.S. EPA’s latest interpretation of the Clean Air Act (CAA) and also the legitimacy of U.S. EPA approved state implementation plans (SIPs).  This action should be of special interest to those that are subject to emission limits in SIPs because it may require changes to state rules applicable to excess emissions.

A basic and holistic summary of this affirmative defense SNPR is that the U.S. EPA proposed to supplement and revise its February 2013 proposal (i.e., its response to a petition for rulemaking filed by the Sierra Club) to ensure states have plans in place that require industrial facilities across the country to follow applicable air pollution rules during periods of startup, shutdown, and malfunction (SSM).  This action reflects the recent federal court ruling that the CAA prevents the U.S. EPA from creating affirmative defense provisions applicable to private civil suites.  This SNPR is proposing to apply U.S. EPA’s latest interpretation of the CAA as it relates to affirmative defense provisions applicable to excess emissions during SSM events in SIPs.  This proposal would not change what the U.S. EPA proposed in the February 2013 notice for other issues that were not related to affirmative defense in SIPs.

The bottom line is that states will not only be prohibited from allowing excess emissions during SSM events, as spelled out in the original SIP call, they will also be prohibited from allowing regulated facilities to use the affirmative defense to avoid civil penalties for such emissions.

For those that would like to dig deeper into the finer details of this SNPR, I provided a list below of some of the issues that the U.S. EPA is proposing to address with this action.  Be sure to also check out the actual SNPR using the hyperlink I provided above.


  • Sierra Club filed “the Petition” with the U.S. EPA June 30, 2011.
    • Among other items, the Petition requested that the U.S. EPA rescind its SSM Policy element interpreting the CAA to allow SIPs to include affirmative defense provisions for violations due to excess emissions during any type of SSM events.
  • U.S. EPA proposed to take action on the petition by notice published in the February 22, 2013 Federal Register.
  • The deadline for this final action has been rescheduled from June 12, 2014 until May 22, 2015.

Issues this SNPR is addressing…

  • U.S. EPA is supplementing and revising what they proposed February 22, 2013, but only to the extent the requests narrowly concern affirmative defense provisions in SIPs.
  • U.S. EPA is not revising or seeking further comment on any other aspects of proposed action.
  • U.S. EPA is proposing to grant the Petitioner’s overarching request that it rescind its SSM Policy element that interpreted the CAA to allow affirmative defense provisions in SIPs.
  • U.S. EPA is proposing to grant the Petitioner’s request to apply a revised interpretation to, and execute the removal of existing affirmative defense provisions in SIPs of 13 states.
  • U.S. EPA has also proposed action for an additional six states’ SIPs that they independently identified.
  • U.S. EPA proposes to issue a ‘‘SIP call’’ with respect to that SIP provision that are affected.
  • See Table 1 of the SNPR for a list of states that the U.S. EPA proposes to grant the petition for or has been independently identified by the U.S. EPA.
  • The final action will establish a deadline by which the state must make a SIP submission to rectify the deficiency (the full 18-month permissible period has been proposed).
  • If the EPA’s final action is disseminated in May 2015, the SIP submission deadline for each of the states subject to the final SIP call could potentially be 18 months later (i.e., November 2016).

Lastly, here are a few key upcoming dates to mark on your calendar:

  • Comments are due for this SNPR on or before November 6, 2014
  • A public hearing  is scheduled for October 7, 2014

As always, if you would like to learn how ALL4 can provide your organization with compliance assistance related to this and other air quality compliance issues, please contact me at (610) 933-5246, extension 120 or at jkleinle@all4inc.com.


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