On September 16, Randy Brogdon was quoted by Law 360, in an article entitled “EPA Says Malfunctions Can’t Protect Plants From Penalties”. The article discusses the EPA’s proposal to require states to change their policy with respect to imposing penalties on industrial sources for unavoidable malfunctions that result in increased air emissions. A previous version of the rule would have allowed states to offer an affirmative defense during such malfunctions so long as the facility minimized its emissions to the greatest extent possible.

Randy offers that while he is not surprised by the revision, “EPA is making a policy decision here, not a legal one.” The original rule was proposed in response to a Sierra Club petition that claimed the exemptions created unfair loopholes.

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