D.C. Circuit To Hear Consolidated Challenges To EPA's New Startup-Shutdown-Malfunction Rule

On May 22, 2015, the U.S. Environmental Protection Agency ("EPA") issued a final rule requiring 36 states to revise their State Implementation Plans ("SIPs") under the Clean Air Act ("CAA"). See 80 Fed. Reg. 33839 (June 12, 2015).

The rule requires states to revise their plans to disallow "affirmative defense" provisions, which protect industrial facilities from civil penalties for violations of the National Ambient Air Quality Standards ("NAAQS") that occur during periods of equipment startup, shutdown, or malfunction ("SSM").

The rule was issued in response to a 2011 Sierra Club petition. EPA promulgated the rule under § 110(k)(5) of the CAA, which provides a mechanism, commonly referred to as a "SIP call," allowing EPA to require states to revise SIPs that the Administrator of the EPA finds to be "substantially inadequate to meet CAA requirements." The new rule gives states until November 22, 2016 to revise their SIPs.