(Many thanks to my colleague and source of all info air related, Brian Freeman, who wrote today’s post.)

Malfunctions happen, even at a well-managed facility.  When they happen, they can cause a facility to deviate from emission limits or other standards regarding (among other things) hazardous air pollutants.  Furthermore, through several court rulings and EPA responses, former “safe harbors” for malfunctions under hazardous air pollutant rules have been removed, and a compliance deviation due to a malfunction – even unavoidable – can be subject to enforcement and penalties.  This post briefly summarizes the issue, and offers a few suggestions for minimizing your enforcement exposure regarding malfunctions.

How we got here

As originally adopted, EPA hazardous air pollutant rules (“National Emission Standards for Hazardous Air Pollutants,” or “NESHAPs”) and numerous state analogs typically provided a conditional exemption from otherwise-applicable requirements for a “malfunction.”  The conditions essentially were that the “malfunction” had to be unavoidable:  sudden, unforeseeable, and not caused by lack of maintenance or other care.

But several years ago, a court challenge by environmentalist NGOs struck down that approach as overbroad.  In brief, the court ruled that the federal Clean Air Act requires regulation of hazardous air pollutant emissions “on a continuous basis” – no exceptions.  EPA then advised states that the conditional exemption could be converted to an “affirmative defense,” meaning that a compliance deviation due to a malfunction would be considered a violation subject to enforcement, but the facility might avoid penalties if it could show that the “malfunction” was unavoidable.

Last year, another legal challenge struck that approach down as well.  Under a proposal issued last fall, EPA is now moving to get affected federal and state air regulations revised accordingly.

So what can a manufacturer do in the meantime?

In light of these developments, here are some actions to consider for hazardous air pollutant emissions from your facility:

1.  Beware obsolete protections in your existing permit. If your facility’s air permit, an applicable NESHAP or a state analog has a conditional exclusion or an “affirmative defense” for malfunctions, check whether these provisions have any legal life left in them at this point.  Likely they don’t.  Ensure that environmental compliance staff, plant-floor operators and relevant others are aware of this.

2.  Develop malfunction-specific terms in any new or reissued permit.  To provide  continuous regulation of hazardous air pollutant emissions at your facility, develop appropriate emission standards for periods of malfunction, with a goal of providing standards that recognize the limits of available control technology and are sufficiently robust to withstand potential legal challenge.  Work with your EPA or state air permit writer to get these terms included in the permit.

3.  Keep working on prevention.  Continually assess whether any changes or upgrades to operations, monitoring or compliance management systems could further minimize the potential for malfunctions that could cause hazardous air pollutant-related compliance issues.

And beyond that, keep alert as to how EPA and relevant states are proposing to change their rules regarding malfunctions. Make your voice heard in those processes in an effort to secure workable, appropriate standards.