Attention: Sources Subject to Title V Permitting

Written By: Heather Locke

You might be wondering why you received a violation for self-reporting what you believed was an emergency. Here’s an explanation:

Background:

In 2014, the U.S. Court of Appeals addressed a petition by the National Resources Defense Council (NRDC) and the Sierra Club. They requested the Environmental Protection Agency (EPA) to review and remove the affirmative defense provisions for malfunctions leading to excess emissions from cement kilns (2014 NRDC v. EPA).

Key Facts:

• Court Ruling: Because of the court’s ruling in this case, the EPA must remove provisions for Affirmative Defense for all Clean Air Act (CAA) programs. The EPA finalized a ruling to do that in 2023 (87 FR 19042). This means that the EPA had to require that all the states also remove the same emergency malfunction affirmative defense provision in their air permits. In the 1990s, when the EPA finalized the rules for CAA Title V permit programs, the EPA provided affirmative defense provisions for your plant’s protection.
• Affirmative Defense: The EPA explained that in its view, the affirmative defense was necessary to resolve a “tension” between the CAA requirement that emission standards apply at all times and the fact that emission limits may sometimes be exceeded for reasons beyond the control of the source. If the event met the conditions defined as an “emergency”, a source could use affirmative defense in an enforcement case to avoid liability if they self-reported the emergency.
• Court’s Decision: However, the court ruled in 2014 that it was a violation of the CAA rights granted to citizens, bypassing the citizen’s right to sue for those excessive emissions situations. The court said that the EPA cannot broadly provide methods that shield your facility from liability even if an event meets the definition of an emergency.

The court said that the question of whether an event was truly an emergency or not, must be dealt with in court on a case-by-case basis and not via EPA rule-making. The EPA therefore had to require that all State permit programs remove any affirmative defense provisions that they allow.

• State Compliance: Following the 2023 EPA rule, states are required to remove affirmative defense provisions that were written into individual permits once those permits are due to be renewed.

The Result:

People need to be aware of these changes.  It is still necessary to report any excess emission release, but it is best to be prepared when doing so. You should not have expectations now that the affirmative defense provisions for emergency malfunctions will be available for you.

If you have any questions about handling emergency excess emission events at your facility, Patriot Engineering and Environmental can help. Contact Heather Locke, at hlocke@patrioteng.com, for more information.

Heather Locke, Senior Environmental Compliance Manager at Patriot, has over 17 years of expertise in air quality, hazardous waste management, and permit development. She possesses in-depth knowledge of EPA regulations and project management experience.