U.S. EPA Removes Regulatory Affirmative Defense Provision Against Alleged Violations of Oil and Gas Facility NESHAPs
On October 22, 2024, the U.S. Environmental Protection Agency (EPA) published a final rule removing an affirmative defense from Clean Air Act (CAA) National Emission Standards for Hazardous Air Pollutants (NESHAP) regulations for the Oil and Natural Gas Production Facility and Natural Gas Transmission and Storage Facility Source Categories (Final Rule).[1] Prior to the Final Rule, owners or operators could assert an affirmative defense that alleged NESHAP standard violations were caused by an equipment malfunction.[2] A “malfunction” is defined as any sudden, infrequent, and not reasonably preventable failure of air pollution control and monitoring equipment, process equipment, or a process to operate in a normal or usual manner.[3]
Vermont and New York Climate Acts are First in a Wave of Likely Climate Change Cost Recovery Laws
On May 30, 2024, Vermont’s Republican governor, Phil Scott, allowed Vermont’s S 259 — also referred to as the “Climate Superfund Act” — to become law without his signature. The stated goal of this law is to mitigate the impacts of climate change.
