This month, the Sierra Club filed a petition for review challenging certain provisions of nine EPA rules that provide for affirmative defenses against alleged Clean Air Act violations in the case of unavoidable malfunctions.  This petition results directly from Sierra Club’s recent partial victory in Natural Resources Defense Council v. EPA, where the D.C. Circuit held in the context of a similar challenge to EPA’s 2013 rule governing emissions standards for the Portland cement industry that “the affirmative defense for private civil suits exceeds EPA’s statutory authority.”  749 F.3d 1055, 1057 (D.C. Cir. 2014).  A victory in this case could impact significantly a number of different industries regulated under Section 112 of the Clean Air Act.

Pursuant to Section 112 of the Clean Air Act, EPA is responsible for developing national emission standards for hazardous air pollutants (NESHAP) for both major and area sources of hazardous air pollutants.  The EPA fulfills this responsibility through rule making procedures that apply to specific industries.  In the case of the Portland cement manufacturing industry, the EPA issued a final rule setting emissions limits for mercury, hydrogen chloride, total hydrocarbons, and particulate matter.  See 78 Fed.Reg. 10,006 (Feb. 12, 2013). This rule included a provision allowing for an “affirmative defense to a claim for civil penalties for violations of [the] standards that are caused by malfunction.”  Id. at 10,039.  This rule provides a defense to a suit for civil penalties brought by a citizen pursuant to Section 304(a) of the Act.

The petitioners in Natural Resources Defense Council challenged EPA’s authority to provide for an affirmative defense to Section 304(a).  Section 304(a) grants “any person” the right to “commence a civil action” against any person “who is alleged to have violated (if there is evidence that the alleged violation has been repeated) or to be in violation of” an emission standard or limitation under the Clean Air Act.  42 U.S.C. § 7604(a).  The petitioners argued and the D.C. Circuit agreed that “EPA’s ability to determine whether penalties should be assessed for Clean Air Act violations extends only to administrative penalties, not to civil penalties imposed by a court.”  Natural Res. Def. Council, 749 F.3d at 1063.  Thus, the court held that “deciding whether penalties are ‘appropriate’ in a given private civil suit is a job for the courts, not for EPA.”  Id.

Now, the Sierra Club has challenged identical provisions in the rules governing the following industries:

  • Sewage Sludge Incinerators, 76 Fed. Reg. 15,372 (Mar. 21, 2011);
  • Group I Polymers and Resins, Marine Tank Vessel Loading Operations, Pharmaceuticals Production, and the Printing and Publishing Industry, 76 Fed. Reg. 22,566 (Apr. 21, 2011);
  • Primary Lead Smelting, 76 Fed. Reg. 70,834 (Nov. 15, 2011);
  • Shipbuilding and Ship Repair and Wood Furniture Manufacturing Operations, 76 Fed. Reg. 72,050 (Nov. 21, 2011);
  • Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 77 Fed. Reg. 9,304 (Feb. 16, 2012);
  • Nitric Acid Plants, 77 Fed. Reg. 48,433 (Aug. 14, 2012);
  • Pulp and Paper Industry, 77 Fed. Reg. 55,698 (Sept. 11, 2012);
  • Hard and Decorative Chromium Electroplating and Chromium Anodizing Tanks, Steel Pickling—HCl Process Facilities and Hydrochloric Acid Regeneration Plants, 77 Fed. Reg. 58,220 (Sept. 19, 2012); and
  • Chemical Manufacturing Area Sources, 77 Fed. Reg. 75,740 (Dec. 21, 2012).

Assuming that the Sierra Club can bypass the sixty day statute of limitations for challenging these rules by invoking the “grounds arising after” clause in 42 U.S.C. § 7607(b), there is a significant likelihood that they will be successful with their challenge.  Given the number of industries that may be impacted by a remand of the above cited rule, this case will be important to monitor.