Environmental Law Matters

Federal Court of Appeals strikes down a portion of the EPA's rule limiting a Court's authority for imposing civil fines for equipment failures. While upholding portions of EPA's new rules for air toxic emissions for cement kilns, in a ruling dated April 16th the District of Columbia Court of Appeals struck down the provision that limited the Federal Courts from imposing civil penalties involving citizen suits for violations of the Clean Air Act for unavoidable equipment malfunctions. The Federal Courts previous 2008 decision finding unlawful EPA's earlier attempt to "exempt" compliance with emissions standards during equipment startups, shutdowns and malfunctions, is now joined with this recent decision to strip the new EPA rule of providing the opportunity to claim an affirmative defense for malfunctions. Commentators have opined that this ruling will cause EPA to consider removing similar affirmative defenses from other rules which may apply to power plants and boilers. The obvious ramification of this ruling is that the applicable industries may face citizen suits for unavoidable and unintended violations of emission standards with no particular guidance given to the Federal Courts on how to deal with those equipment malfunctions.