The U.S. Environmental Protection Agency is attempting to remove affirmative defense provisions from emissions standards regulations under the Clean Air Act. On Jan. 16, GPA Midstream Association filed comments with the EPA protesting the proposed rule that would take away the oil and gas industry’s ability to protect itself from liability in the case of equipment malfunctions.
The categories of the National Emission Standards for Hazardous Air Pollutants that pertain to the oil and natural gas production facilities, natural gas transmission and storage currently permit affirmative defense that allows companies to admit fault but avoid liability if they can show that the circumstances were beyond their control.
The EPA decision was based on a narrow reading of a U.S. Court of Appeals decision from the D.C. circuit court that limits the use of affirmative defense in reducing penalties for malfunction-related emissions. The EPA believes the ruling applies to liability in administrative actions at the agency level.
We contend that the EPA used an inaccurate understanding of the decision and that they have an inadequate explanation of why they believe affirmative defense should be taken off the table despite the appellate court expressly finding them permissible in that context.
Because the agency is relying on this erroneous legal reason to justify the proposed rule, we urge EPA to withdraw the proposal and retain the malfunction affirmative defense for the valuable flexibility it provides. The affirmative defense has long been in place to provide some flexibility because there is an inherent tension in many air regulations to ensure compliance and still recognize emission standards may be violated under circumstances beyond the control of the company.
Nothing in the court’s decision can be read to support EPA’s radical interpretation of how affirmative defenses operate. Indeed, it would be unjust to penalize a source for emissions that were beyond its control as this neither serves the purpose of punishment nor deterrence. The proposed rule, however, provides no explanation as to why, after decades of finding an affirmative defense for emergency-related emissions to be necessary, justice no longer requires it.