1

BEFORE THE ADMINISTRATOR

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

___________________________________________

In the Matter of: )

)

Final Rule for National Emission Standards for ) EPA-HQ-OAR-2002-0051 &

Hazardous Air Pollutants From the Portland ) EPA-HQ-OAR-2007-0877

Cement Manufacturing Industry and Standards )

Of Performance for Portland Cement Plants )

)

)

___________________________________________ )

PETITION FOR RECONSIDERATION

Pursuant to Section 307(d)(7)(B) of the Clean Air Act (“CAA” or “Act”), 42 U.S.C. §

7607(d)(7)(B), the Natural Resources Defense Council petitions the Administrator of the

Environmental Protection Agency (“EPA” or “Agency”) to reconsider certain provisions of its

final rule setting National Emission Standards for Hazardous Air Pollutants from the Portland 

cement manufacturing industry, as published at 75 Fed. Reg. 54970 (Sept. 9, 2010) and titled

“National Emission Standards for Hazardous Air Pollutants From the Portland Cement

Manufacturing Industry and Standards of Performance for Portland Cement Plants” (“Cement

NESHAP” or “final rule”). The objection raised in this petition concerns EPA’s promulgation of

an affirmative defense of malfunction. The defense was first introduced in the final rule and, in 

finalizing it, EPA has invented a defense that does not exist in the Act and limits the ability of

citizens to seek civil penalties and of courts to impose them for violations of emission standards,

thus altering the statutory scheme.

This petition raises an objection to the final rule. The grounds for the objection raised in 

this petition “arose after the period for public comment.” 42 U.S.C. § 7607(d)(7)(B). With

respect to the objection, the regulatory language and EPA interpretation that render the rule

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law appeared 
2

for the first time in the final rule published in the Federal Register on September 9, 2010, 75 

Fed. Reg. 54970. The public comment period for EPA’s proposed rule on the Cement NESHAP

closed on September 4, 2009. 74 Fed. Reg. 21136 (May 6, 2009) (proposed rule); 74 Fed. Reg.

27265 (June 9, 2000) (extending comment period). Moreover, the objection is “of central

relevance to the outcome of the rule,” 42 U.S.C. § 7607(d)(7)(B), in that it demonstrates that the

rule is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”

and thus provides grounds for reversal of the rule. Id. § 7607(d)(9)(A). The Administrator must

therefore “convene a proceeding for reconsideration of the rule and provide the same procedural

rights as would have been afforded had the information been available at the time the rule was

proposed.” Id. § 7607(d)(7)(B).

OBJECTION

I. The Grounds for the Objection Raised Here Arose After the Close of Public

Comment.

In the final Cement NESHAP, EPA added an affirmative defense of malfunction, 75 Fed.

Reg. at 54993, that EPA acknowledges was never discussed in the proposed rule, id.; see also 74 

Fed. Reg. at 21161-62. The decision to add the defense to the rule and the accompanying 

rationale were made public only in the final rule, after the close of public comment on the

proposed rule on September 4, 2009. EPA does not even offer an excuse for the late inclusion of

the new provision without public comment; the decision appears to have been based solely on 

industry pressure. See 75 Fed. Reg. at 54993.

Thus, the ground for our objection arose after the close of public comment and the raising 

of the objection during the comment period was impracticable. See 42 U.S.C. § 7607(d)(7)(B).
3

II. The Objection Raised Is of Central Relevance to the Outcome of the Rule.

The objection raised here is of central relevance to the outcome of the rule, see 42 U.S.C.

§ 7607(d)(7)(B), because it goes to the core procedural and substantive validity of standards set

by the rule for periods of malfunction. EPA failed to take public comment on, and critique of,

the affirmative defense of malfunction and of the rationale for its decision; it failed to meet the

requirements of the Act; and it failed to meet standards of reasoned decision-making. Had these

objections been addressed, and had EPA made this decision with the appropriate opportunity for

public comment, it is likely that the affirmative defense of malfunction would not have been 

finalized.

A. EPA Violated the Clean Air Act’s Procedural Protections by Failing to Provide

Public Notice and Opportunity for Public Comment on the Affirmative Defense

of Malfunction.

EPA unlawfully failed to present the affirmative defense of malfunction and the

accompanying rationale to the public for comment. Under Clean Air Act section 307(d), which

applies to this proceeding, EPA must present for public comment “the major legal interpretations

and policy considerations underlying the proposed rule.” 42 U.S.C. § 7607(d)(3)(C). EPA did 

not do so here. Moreover, there can be no argument that the affirmative defense and 

accompanying rationale are a logical outgrowth of the discussion in the proposed rule because

the defense was not mentioned at all in the proposed rule nor was anything similar considered in

the proposed rule such that NRDC should have anticipated its ultimate conclusion. See

Northeast Maryland Waste Disposal Authority v. EPA, 358 F.3d 936, 951-52 (D.C. Cir. 2004).

Therefore, EPA should have provided an opportunity for comment on these issues before

finalizing the defense.
4

Such a procedural failure is of “such central relevance to the rule that there is a

substantial likelihood that the rule would have been significantly changed if such errors had not

been made.” See 42 U.S.C. § 7607(d)(8).

B. EPA’s Adoption of the Affirmative Defense of Malfunction Is Not in Accordance

with the Law.

EPA and the courts must consider all the statutory factors in determining penalties for

violations of the Clean Air Act, including good faith efforts to comply with the law. 42 U.S.C.

7413(e)(1) (“[T]he Administrator or the court, as appropriate, shall take into consideration . . ..”)

(emphasis added); Airosol v. Pound Co., 498 F.3d 1089, 1097-98 (10th Cir. 2007). The defense

established in the final rule changes the statutorily-mandated penalty calculus: instead of

allowing a balancing of good faith with other factors to determine penalties, the defense of

malfunction elevates this factor above all others without considering the specific circumstances

of the violation, contrary to the statutory scheme, thus limiting both the agency’s and the courts’

discretion more narrowly than the statutory scheme. EPA’s rulemaking therefore violates the

plain language of the statute.

The affirmative defense of malfunction, which EPA creates out of whole cloth, wholly

ignores that the CAA imposes strict liability on those who violate the statute. Id. at 1097. In 

Airosol, the court determined that “the fact that [the plaintiff] ‘did not establish at trial that [the

defendant] intentionally violated the Clean Air Act’ is also an impermissible basis for a complete

mitigation of [defendant’s] penalty.” Id. In choosing to mitigate all penalties if the violation 

occurred because of a malfunction, EPA commits the same error, ignoring the strict liability 

imposed by the statute for violations, and requiring plaintiffs (either a government or citizens) to 

gather evidence to rebut a claim about the intent behind the violation.
5

The Act does not include such a defense, and EPA may not invent such a defense and 

create further hurdles for citizen plaintiffs. “Congress enacted [the CAA citizen suit provision]

specifically to encourage citizen participation in the enforcement of standards and regulations

established under this Act,” and “intended the section to afford . . . citizens . . . very broad

opportunities to participate in the effort to prevent and abate air pollution.” Pennsylvania v. Del.

Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560 (1986) (citations omitted). Countering

the defense any time the defense is raised (whether legitimately or not) will require citizens to 

engage in difficult fact-intensive battles to obtain the imposition of any civil penalties. The

additional defense that citizens would have to overcome in order to avoid the complete

elimination of civil penalties adds hurdles for citizen suits beyond the requirements that

Congress imposed and thus runs counter to the broad opportunities to participate in enforcement

that Congress envisioned.

Finally, the defense is an end-run around Sierra Club v. EPA, 551 F.3d 1019, 1028 (D.C.

Cir. 2008), which overturned exemptions from compliance with the requirements of Section 112

of the Clean Air Act, 42 U.S.C. § 7412, during periods of startup, shutdown, and malfunction. In

Sierra Club the D.C. Circuit held that the EPA may not exempt facilities from compliance with

section 112 MACT requirements (like the Cement NESHAP) on a temporal basis because the

Act requires that some section 112-compliant standard apply to HAP-emitting facilities at all

times, and therefore vacated a compliance exemption for periods of startup, shutdown, and

malfunction. Id. at 1028. EPA argues that the finalized standards would continue to apply during

periods of malfunction, but removes one of the most important deterrents to violations that

Congress put in place. By removing civil penalties as a potential response to violations

associated with malfunctions, the rule essentially exempts violations during periods of
6

malfunction from having to comply with the standards by eliminating the greatest incentive to

comply with the standards at all times, and does so without having analyzed any of the other

factors that Congress considered important for each assessment of a penalty. By limiting the

penalties that may flow from a violation of the requirement, EPA has changed the standard 

created by the statute and has created an exemption from the section 112-compliant standard. If

this were allowed, EPA would not have to abide by Sierra Club’s prohibition against a

temporally-based difference in standards because it could simply limit the consequences of

violating the standard to achieve the same result.

EPA’s defense of malfunction thus violates the spirit and requirements of the CAA.

C. EPA’s Adoption of an Defense of Malfunction is Arbitrary and Capricious

Because It Fails to Meet Basic Standards of Reasoned Decision-making.

An action is “arbitrary and capricious” if it relies on “factors which Congress has not

intended it to consider, entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs counter to the evidence before the agency, or is so 

implausible that it could not be ascribed to a difference in view or the product of agency 

expertise.” North Carolina v. EPA, 531 F.3d 896, 906 (D.C. Cir. 2008). The arbitrary and 

capricious standard “is the same under the CAA and the [Administrative Procedure Act].” Id.

(quotations omitted).

EPA’s post-comment-period decision to adopt a defense of malfunction is not supported 

by any reasoned analysis and fails to consider an important aspect of the problem. EPA’s

rationale has no support. EPA states: “In response to comments urging that EPA not apply the

same standards to malfunctions as to normal operation, EPA recognizes that even equipment that

is properly designed and maintained can sometimes fail and that such failure can sometimes

cause (or in the case of 30-day averages, contribute to) an exceedance of the relevant emission 
7

standard.” 75 Fed. Reg. at 54993. These are factors that are easily addressed by EPA’s existing 

enforcement discretion and by its ability to take into account good faith and other statutory

factors in setting civil penalties. 42 U.S.C. § 7413(e)(1). The same provision equally allows

courts to take good faith into account in setting penalty amounts. Id. EPA has established no 

need for this new defense, which is not available under the Act.

In addition, EPA fails to consider the impacts of the new defense on citizen suits. EPA

reasons that in “any judicial or administrative proceeding, the Administrator may challenge the

assertion of the affirmative defense and, if the respondent has not met its burden of proving all of

the requirements in the affirmative defense, appropriate penalties may be assessed in accordance

with Section 113 of the Clean Air Act [42 U.S.C. § 7413].” 75 Fed. Reg. at 54993. What EPA

fails to acknowledge and to take into account is that this adds an additional hurdle for those

seeking to address violations of the Clean Air Act—to show that the burden on the affirmative

defense has not been met or face the prospect of zero penalties being imposed regardless of other

statutory factors. EPA not only imposes this additional hurdle of a fact-intensive battle on itself,

but imposes it upon citizens who often do not have the resources to investigate such claims. The

Act does not impose any such requirement and EPA has no authority to increase the demands for

citizens when they bring a citizen suit. EPA also fails to consider that this defense narrows not

just its own, but also the courts’, discretion on penalties.

Thus, EPA’s decision to create a defense of malfunction is arbitrary and capricious, and 

the objection is of central relevance to the outcome of the rule because it can lead to the reversal

of the rule.
8

CONCLUSION

For the reasons above, EPA must grant this petition for reconsideration and discard the

defense of malfunction that it created in the final rule.

Respectfully submitted,

/s/ Avinash Kar

Avinash Kar

Natural Resources Defense Council

111 Sutter St., 20th Floor

San Francisco, CA 94104

Ph: (415) 875-6100

Fax: (415) 875-6161

Colin O’Brien

John Walke

Emily Davis

Natural Resources Defense Council

1200 New York Ave., NW, Suite 400

Washington, DC 20005

Ph: (202) 289-6868

Dated: November 8, 2010