North Carolina is the second state seeking an exemption from an Obama-era EPA rule that limits air pollution emissions during startups, shutdowns, and malfunctions at industrial boilers and facilities.

The Environmental Protection Agency’s Region 4 office in Atlanta proposed June 5 to allow North Carolina to “deviate” from the 2015 rule by granting immunity to industrial facilities that exceed their air pollution permit limits during startup, shutdown or malfunction operations—the times when emissions can increase, according to Grady Moore III, a partner at Balch & Bingham LLP in Birmingham, Ala. Facilities can face civil penalties for violations during these times under the 2015 rule, and North Carolina first sought an exemption in 2017.

Moore told the America Bar Association’s environmental section at its meeting in Atlanta June 11 there’s “some debate” about how to provide those facilities with regulatory relief during those periods of higher emissions.

EPA Region 4’s proposal (84 Fed. Reg. 26,031) takes its cue from its Region 6 counterpart in Dallas, which already has approved this exemption for Texas.

36 States Subject to Rule

North Carolina and Texas are among the 36 states covered by the 2015 rule.

Attorneys for environmental groups say the EPA is “unraveling” the rule region-by-region, evading the rulemaking process in order to skirt review by the U.S. Court of Appeals for the District of Columbia Circuit.

“It’s illegal & cynical, even by this wrecking crew’s standards,” John Walke, director of the clean air, climate and clean energy program at the Natural Resources Defense Council, told Bloomberg Environment June 11 in a written response to a question.

EPA Region 4 is seeking comment by Aug. 5 on its proposal for North Carolina, which it says could apply to other southeastern states. The agency didn’t respond to a request for comment about skirting the rulemaking process for withdrawing the 2015 rule; Region 4 officials pointed to the June 5 notice.

Differing Views

Industry lawyers differ in their reading of the proposal.

The rule once adopted would not exempt industrial facilities from liability, Eric Hiser, a partner with Phoenix-based Jorden Hiser & Joy PLC, told Bloomberg Environment.

Rather, Hiser said, it would create an additional layer of protection for industrial facilities against penalties if they can prove they followed all state requirements to minimize the excess pollution during these events.

However, Hiser did say that EPA was creating a patchwork of regulations for industries that might have operations in adjoining states.