EPA seeks to hasten removal of Clean Air Act loopholes

By Sean Reilly | 06/21/2024 01:30 PM EDT

The proposal will affect a broad swath of industrial polluters including power plants, paper mills and chemical facilities.

Emissions rise from smokestacks.

Emissions rise from smokestacks. Charlie Riedel/AP

EPA is moving to accelerate the elimination of loopholes that let a variety of industries dodge civil penalties for air pollution violations stemming from equipment breakdowns.

Under a draft rule set for publication in Monday’s Federal Register, the agency would strip “affirmative defense” provisions from almost 20 sets of rules affecting electric power producers, shipbuilders and other sectors.

While EPA and regulators in most states apart from Texas don’t track unpermitted emissions stemming from pollution control equipment failures, those releases can be enormous. Affirmative defense provisions, however, shield companies from Clean Air Act civil penalties that may total tens of thousands of dollars per day of violations.


In a 2014 decision, the U.S. Court of Appeals for the District of Columbia Circuit deemed such malfunction-related loopholes illegal. While EPA has since been haltingly weeding out those provisions piecemeal when revising the regulations for individual industries, the new proposal’s wholesale approach seeks to proceed “more efficiently,” the agency said.