On April 6, the U.S. EPA published a final rule removing the affirmative defense language for power plants that shielded operators from civil penalties related to violations caused by unavoidable equipment malfunctions. (81 Fed. Reg. 20, 172). The EPA had included affirmative defense language in many of its hazardous pollutants standards in recognition that some regulatory violations are due to factors entirely outside of the control of the pollution source. The U.S. Court of Appeals for the District of Columbia ruled that a civil penalty shield was outside of the scope of the agency's Clean Air Act authority. The EPA indicated that in lieu of affirmative defense provisions, the agency will be able to use its case-by-case enforcement discretion to address violations resulting from malfunctions.
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