Affirmative defenses commonly relied upon by facility operators to avoid civil and administrative penalties for violations of air emissions limitations during periods of facility startup, shutdown or malfunction (“SSM”) may become a thing of the past.

On June 12, 2015, in response to a petition for final rule-making filed by the Sierra Club, the U.S. Environmental Protection Agency issued a final rule requiring 36 states, including Oklahoma, to revise their state implementation plans (state air quality regulations commonly referred to as “SIPs”) regarding excess emissions during periods of SSM. EPA found in this “SIP call” that the SIPs in those 36 states are “substantially inadequate to meet [Clean Air Act] requirements.” A “SIP call” occurs when EPA makes a finding that a set of state air quality regulations fail to adhere to the Federal Clean Air Act.

Subchapter 9 of the Oklahoma Air Pollution Control rules (OAC 252:100-9) sets forth requirements for the reporting of “excess emissions” and establishes affirmative defense provisions for facility owners and operators for excess emissions. Excess emissions are defined as “the emission of regulated air pollutants or opacity in excess of an applicable limitation or requirement as specified in the applicable rule(s), enforceable permit, administrative or judicial order.” The Oklahoma Department of Environmental Quality has the authority to bring enforcement actions and impose penalties for any emissions limitations violations. “All periods of excess emissions regardless of cause are violations of the [Clean Air] Act and rules promulgated thereunder, the Oklahoma Clean Air Act and rules promulgated thereunder and applicable permit or other authorization of the DEQ.” See OAC 252:100-9-8.

However, many facilities cannot meet emissions limitations while they are starting up or shutting down operations or during malfunction conditions. For many years, the Oklahoma DEQ, like many other states (and EPA), has recognized the challenges of meeting emission limitations under these conditions when a facility is not operating in a steady-state. As a result, Oklahoma has set forth “affirmative defenses” as a means of relief from civil or administrative penalties that can be imposed as a part of an enforcement action. See OAC 252:100-9-8.

To successfully assert the affirmative defense and avoid penalties, the owner or operator has the burden of proof to show, among other criteria, that DEQ reporting requirements have been met, that the excess emissions were caused by an unavoidable failure, that necessary repair was undertaken as quickly as possible, that steps were taken to minimize the duration of any excess emissions, and that the facility was operating in a manner consistent with good practices at all times.

EPA concludes in the SIP call that startup and shutdown operations constitute “normal” operation and that a facility’s emission limits must “continuously” apply, even during malfunctions. Thus, EPA has taken the position that any SIP that contains an automatic exemption, discretionary exemption, or affirmative defense provision is inconsistent with Clean Air Act requirements and must be revised. Excess emissions during SSM events would be considered violations of the Clean Air Act, subject to enforcement and both monetary penalties and injunctive relief. During an enforcement action, sources may still assert any common law or statutory defenses they believe are supported by the circumstances. The Oklahoma DEQ rule does not allow for automatic exemptions from emissions limitations but does provide the aforementioned affirmative defense that is now viewed by EPA as an impermissible variance to the Clean Air Act.

EPA recommends seven criteria as appropriate considerations for states as they consider SIP revisions. The rule states that different emissions limitations can apply to particular modes of operation, and work practice standards are suggested rather than numerical emission limitations. The rule also allows a state to issue its own enforcement discretion criteria for excess emissions due to SSM, but such criteria cannot be binding on the United States or any citizens group.

The states have until November 22, 2016, to submit to the EPA their revised SIPs concerning the treatment of excess emissions during periods of SSM. The Oklahoma DEQ is tentatively scheduled to propose amendments to its SSM rule (OAC 252:100-9) in September for consideration at the October 14, 2015, DEQ Air Quality Council Meeting.

Two legal challenges to EPA’s SIP call have already been filed in the U.S. Court of Appeals for the Fifth Circuit and in the D.C. Circuit.  www.gpo.gov/fdsys/pkg/FR-2015-06-12/pdf/2015-12905.pdf