On June 1, 2026, U.S. EPA published a final rule to rescind the 2023 final rule titled “Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and Federal Operating Permit Program” (herein referred to as the “2023 Affirmative Defense Rule”). This final rule carries out a court mandate to reinstate the emergency-related affirmative defense provisions within the state and federal operating permit content requirements of 40 CFR 70.6 and 40 CFR 71.6.
For environmental managers and air permit holders, this rulemaking may have important implications for how excess emissions events and emergency response actions are documented and evaluated. Facilities should review their operating, notification, and recordkeeping procedures now to ensure they can fully demonstrate an affirmative defense based on an emergency should a qualifying emergency event occur.
Background and Purpose
On July 21, 2023, U.S. EPA issued the 2023 Affirmative Defense Rule. This 2023 final rule rescinded previous emergency-related affirmative defense provisions codified in 40 CFR 70.6(g) and 40 CFR 71.6(g). At the time, U.S. EPA had concluded that these provisions were legally impermissible under the Clean Air Act. As a result of the removal of these provisions from the federal regulations, states were required to remove any affirmative defense provisions based on these rescinded allowances from their operating permit programs.
On September 5, 2025, a decision by the U.S. Court of Appeals for the D.C. Circuit found that the 2023 Affirmative Defense Rule was based on “erroneous legal justifications.” Following this finding, the court issued a mandate on January 12, 2026, invalidating the 2023 Affirmative Defense Rule. This new final rule, published on June 1, 2026, represents U.S. EPA’s action to rescind the 2023 Affirmative Defense Rule in accordance with the court mandate and restore the prior regulatory text.
Through this final rule, a framework has been reinstated which distinguishes between liability for noncompliance and situations where noncompliance occurs as a result of sudden and unavoidable events, which is expected to reduce the amount of penalties issued to facilities that properly respond to emergency situations or malfunctions resulting in excess emissions events.
What is an “Emergency”?
The new final rule reinstating emergency-related affirmative defense provisions includes the following key definition for an “emergency” in 40 CFR 70.6(g)(1) and 40 CFR 71.6(g)(1):
Emergency means any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God, which situation requires immediate corrective action to restore normal operation, and that causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency. An emergency shall not include noncompliance to the extent caused by improperly designed equipment, lack of preventative maintenance, careless or improper operation, or operator error.
Requirements to Demonstrate Affirmative Defense Based on Emergency
To demonstrate an affirmative defense based on an emergency resulting in noncompliance with a technology-based emission limitation, 40 CFR 70.6(g) and 40 CFR 71.6(g) require the following information to be documented via a properly signed, contemporaneous operating log, or other relevant evidence:
- An emergency occurred and the permittee can identify the cause(s) of the emergency;
- The permitted facility was at the time being properly operated;
- During the period of the emergency the permittee took all reasonable steps to minimize levels of emissions that exceeded the emission standards, or other requirements in the permit; and
- The permittee submitted notice of the emergency to the permitting authority within 2 working days of the time when emission limitations were exceeded due to the emergency. This notice must contain a description of the emergency, any steps taken to mitigate emissions, and corrective actions taken.
Effect on Permitting Going Forward
Newly issued Title V operating permits going forward should contain the emergency-related affirmative defense provisions once again. Sites operating under existing permits that still have the longstanding affirmative defense language will no longer need this language to be removed with the next permit revision/renewal. States may choose (but are not required) to reinstate similar language in their regulations for usage by both Title V and non-Title V facilities.
Additional Clarifications
The emergency-related affirmative defense provisions may only be used for emergency events (e.g., storms, lightning strikes, power outages, fires, etc.) which result in noncompliance with a technology-based emission limitation. A technology-based emission limitation includes those emission limitations stemming from major Clean Air Act programs. These provisions are designed to cover situations where control technology fails unexpectedly (e.g., scrubber failure due to power outage).
These provisions may not be leveraged, however, to assert an affirmative defense based on an emergency resulting in noncompliance with non-technology-based emission limitations. Examples of non-technology-based emission limitations include the following:
- Synthetic minor limitations to avoid major source status
- Facility-wide emission limitations derived from dispersion modeling to ensure a National Ambient Air Quality Standard (NAAQS) is not violated
- Risk-based or health-based limitations derived from toxicity or cancer risk thresholds implemented through a state air toxics program
Lastly, it should be noted that these provisions may only be used for emission limitations and may not be leveraged in the event of noncompliance with other permit requirements such as operating limitations or recordkeeping requirements, barring separate allowances through any applicable requirement.
Now is an opportune time to review your facility’s emergency response and documentation practices and our team is available to assist with evaluating the applicability of these reinstated provisions. If you would like to discuss further with a Trinity expert, please contact Austin Angeline or Katherine Katsourides via email.
