EPA Elimination of CAA Affirmative Defenses: New Rule; Case-by-Case Enforcement; Defense Issues and Best Practices

Description

On July 21, 2023, the EPA issued a final rule eliminating AD provisions under Title V of the CAA for violations caused by emergency circumstances. The agency claims the AD is inconsistent with the enforcement structure of the CAA in light of prior court decisions such as Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). The rule is effective as of Aug. 21, 2023. And the EPA has instructed any states that have adopted similar AD provisions to remove those from their programs by Aug. 21, 2024.

This action signals the EPA's intent to rely on case-by-case enforcement decisions rather than categorical relief to impose liability for air permit violations as further demonstrated by the EPA's eliminating or omitting ADs for other areas covered under the CAA: e.g. New Source Performance Standards (81 FR 40956), Emission Guidelines for Major Sources (80 FR 72789), and the HESHAP for the Portland Cement Manufacturing Industry.

Yet, the EPA's position is currently being challenged in Env’t Comm. of the Florida Elec. Power Coordinating Grp. Inc. v. EPA, Case No. 15-1239 (D.C. Cir.) where a core issue is whether the EPA's interpretation that the NRDC holding on ADs extends beyond CAA Section 112 to other sections of the Act.

Listen as our expert panel describes the history of CAA affirmative defenses and notable court decisions leading to the EPA's current stance. The panel will discuss the current rule eliminating the Title V emergency AD and other similar actions taken by the EPA involving ADs. The panel will address legal challenges that may affect the new rule and best practices for compliance and defense of enforcement actions.