In a final rule issued on May 22, the EPA has given 36 states until November 22, 2016 to revise their state implementation plans (“SIPs”) to remove provisions allowing a defense to enforcement actions under the Clean Air Act for violations that occur during start up, shut down and other emergency situations. The rule, which amends 40 CFR part 52, requires the 36 affected states to do away with affirmative defenses for excess air admissions during equipment malfunctions, and during the start up and shut down operations when air emissions tend to be higher than during normal operations. In the final rule, the EPA makes clear that the requirement to remove affirmative defense provisions from the 36 affected state SIPs does not alter the legal rights of industrial sources under the Clean Air Act to assert any other common law or statutory defenses that may exist.

For a complete listing of the 36 affected states, or to discuss how the new rule may affect your business, please contact Phillip Hoover.

To see a pre-publication version of the final EPA start-up, shut down and malfunction rule, please Click HERE; and a fact sheet that highlights the EPA’s final start-up, shut down and malfunction rule can be found HERE.