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Nov 15 2016

TCEQ Pushes Back at EPA’s Objection to Affirmative Defenses


November 15, 2016 (Houston)

James SmithBy James Smith – “Environmental Alert” (Schirrmeister, Diaz-Arrastia, Brem LLP)

The Texas Commission on Environmental Quality (“TCEQ”) recently published an update to its air quality State Implementation Plan (“SIP”), designed to address an objection from the EPA.  The objection relates to an affirmative defense that the TCEQ has available for air emissions resulting from upset events or from maintenance, startup, and shutdown (“MSS”) activities.  An affirmative defense allows a facility to escape some or all enforcement consequences when emissions exceed allowable limits, if the affirmative defense conditions can be proved.

The EPA objected to the affirmative defense, on the grounds that the Clean Air Act did not allow for them.

TCEQ’s Response to the EPA’s Objection

The TCEQ’s update has two components.  First, the update only becomes effective if and when the TCEQ loses its court challenge to the EPA’s objection, which is pending before the D.C. Circuit Court of Appeals.  Second, the update keeps the affirmative defense in place, but adds a statement that the defense was not intended to lessen a federal court’s jurisdiction or discretion to determine appropriate enforcement in the event of a violation.  The TCEQ’s action appears to be an attempt to do as little as possible to meet the EPA’s objection.

Defense Only Applies in Limited Situations

This affirmative defense applies only when upset events or MSS activities lead to emissions above permitted limits.  Moreover, the defense only applies when the facility can show: (1) that the period of excess emissions was minimized to the extent practicable; and (2) that excess emissions were not due to faulty operations or disrepair of equipment.

EPA’s Changing View of Affirmative Defenses

From 1999 until 2014, the EPA accepted the TCEQ’s affirmative defense under these conditions.  The EPA changed position in 2014, and informed the TCEQ that the EPA would revoke its SIP, unless the TCEQ removed the affirmative defense from the TCEQ’s regulations.

The current EPA seems to envision a world in which all emissions are either strictly within permitted limits or are violations that can subject facilities to rigorous enforcement.  In this world, affirmative defenses and the notion of force majeure do not exist.  This is a vision that the TCEQ definitely does not share.

For a copy of TCEQ’s publication click here.

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