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

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, October 17, 2023

Recorded event now available

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This CLE webinar will discuss the history of the Clean Air Act's (CAA) affirmative defenses (ADs) and notable court decisions leading to the EPA's gradual elimination of ADs available to defendants including the new rule eliminating the AD for Title V violations in emergency situations. The panel will describe the effect on state programs and current legal challenges that may affect the new rule. The panel will address key issues and best practices for compliance and defense of enforcement actions.

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.

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Outline

  1. Introduction
    1. History of CAA affirmative defenses
    2. Case law leading to EPA's removal/omission of ADs
      1. Natural Resources Defense Council v. EPA
      2. U.S. Sugar Corp. v. EPA
      3. Sierra Club v. EPA
  2. EPA's recent history of action involving ADs
    1. New source performance standards (81 FR 40956)
    2. Emission guidelines for major sources (80 FR 72789)
    3. NESHAP for the Portland Cement Manufacturing Industry
  3. The new rule eliminating the Title V emergency AD
  4. Legal challenges against the EPA that may affect the new rule
  5. Best practices for compliance and defending enforcement actions

Benefits

The panel will review these and other important issues:

  • What has led to the EPA's removal or omissions of ADs under the CAA?
  • How are state programs affected?
  • What challenges face defense counsel with the elimination of the emergency AD?
  • How may current legal challenges affect the new rule?
  • What are best practices for compliance and defending enforcement actions given the limited ADs available?

Faculty

McDonough, Michael
Michael S. McDonough

Partner
Pillsbury Winthrop Shaw Pittman

Mr. McDonough focuses on defending enforcement actions, bringing regulatory challenges, and litigating with regulatory...  |  Read More

Wilson, Joshua
Joshua Wilson

Attorney
Baker & Hostetler

Mr. Wilson’s environmental practice includes bringing and defending litigation to advance client interests,...  |  Read More

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