EPA restores emergency-related affirmative defense provisions for Title V operating permits

In response to a court mandate, the Environmental Protection Agency (EPA) has rescinded a 2023 final rule that removed emergency-related affirmative defense provisions from the Title V operating permit regulations (the 2023 Affirmative Defense Rule) under the Clean Air Act.

The final rule (published on June 1, 2026) reinstates the emergency-related affirmative defense provisions for state and federal Title V operating permit programs (at 40 CFR 70.6(g) and 71.6(g), respectively).

Who’s impacted?

EPA’s final rule affects stationary sources subject to Title V operating permit requirements.

What does this mean?

The emergency-related affirmative defense provisions establish a framework for regulated facilities to assert an affirmative defense in enforcement proceedings for violations of technology-based emission limits caused by sudden, unavoidable emergencies, provided certain conditions are met.

To rely on the emergency-related affirmative defense, stationary sources must demonstrate that:

• A qualifying emergency occurred,
• The facility was being properly operated,
• The facility took all reasonable actions to limit excess emissions, and
• The facility properly notified the permitting authority.

EPA’s demonstration requirements are listed at 70.6(g)(3)/71.6(g)(3).

What affirmative defense covers

An “emergency,” as defined by 70.6(g)(1)/71.6(g)(1), generally refers to a sudden, unforeseeable event beyond the facility’s control that causes noncompliance with technology-based emission limits established in its Title V operating permit.

What affirmative defense doesn’t cover

The provisions don’t apply to noncompliance due to:

• Improperly designed equipment,
• Lack of preventive maintenance,
• Careless or improper operation, or
• Operator error.

Key to remember: EPA has restored the emergency-related affirmative defense provisions for Title V operating permits, allowing stationary sources to assert a regulatory affirmative defense for certain emission violations caused by events beyond the facility’s control.