US EPA Signs Proposal to Remove “Affirmative Defense” from Several Standards

The US Environmental Protection Agency (EPA) recently signed a proposal to remove “affirmative defense” provisions from 18 rules in the New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) under the Clean Air Act. These provisions had previously protected sources from civil penalties for emission standard violations during malfunctions if specific actions were followed. The move follows a 2014 D.C. Circuit court decision (NRDC v. EPA) that vacated such provisions in one EPA regulation. This proposal aims to enhance consistency and clarity in Clean Air Act regulations without affecting emission standards, compliance, or costs.

A copy of the proposed rule and fact sheet can be found here.