The New Mexico Environment Department (“NMED”) has moved to repeal and replace the emergency affirmative defense provisions under 20.2.70 NMAC to mirror the U. S. Environmental Protection Agency (“EPA”) July 12, 2023 final rule update to 40 CFR 70.6(g) and 71.6(g). The EPA issued a mandate for state permitting authorities to revise their Title V permit programs in alignment with this change. The New Mexico Environmental Improvement Board issued a public involvement plan on February 24, 2025, and held a public hearing on July 18, 2025, during which the proposed changes were approved, advancing final decision-making to the Supreme Court. This ruling reflects a broader movement by EPA and state agencies to strengthen accountability and enforcement under the Clean Air Act and compels facilities to prioritize compliance.
Removal of the emergency affirmative defense provisions affects facilities operating under state and federal Title V air permits. The emergency affirmative defense language allowed facilities to provide justification for emission events or upsets that occurred during emergencies. However, with the removal of this language, justifications for reportable events during emergencies or upsets will be more difficult to defend, or may not be defensible at all. To ensure compliance with the updated regulations, individual operating permits containing emergency affirmative defense provisions will need to be updated during routine permit renewals or revisions.
Impacts of this Ruling
Presently, Title V facilities can invoke emergency affirmative defense during exceptional events like sudden equipment failure, emergency shutdowns, or utility loss. This defense offers protection from enforcement if the facility can demonstrate that excess emissions are unavoidable and properly reported. This safeguard may now be eliminated. As a result, permit holders could potentially have to prepare for a regulatory framework where any exceedance of permitted limits can be treated as a violation. In New Mexico, any exceedance of permitted limits, either hourly or annual, is considered a reportable event.
From an operational standpoint, the potential removal of the emergency defense provisions elevates both compliance risk and the cost of failure, as even brief, unavoidable exceedances could trigger enforcement actions, including fines or operational restrictions. Applicable facilities may need to strengthen their air compliance programs through expanded use of continuous emissions monitoring systems (CEMS), predictive diagnostics, and process automation tied to emissions control logic. Enhanced redundancy and secondary backup controls may also be required to reduce the likelihood of emission exceedances during unforeseen conditions.
The financial implications of these changes may be significant. Retrofitting existing infrastructure with advanced control technologies or redundant systems can require upfront investment. Additionally, the increased risk of enforcement actions could lead to higher legal and compliance costs, as facilities may need to engage environmental consultants and legal experts to navigate disputes with regulators.
Conclusion
In conclusion, the repeal of the emergency affirmative defense provisions marks a shift for Title V facilities in New Mexico. By eliminating protections during emergencies, the revised 20.2.70 NMAC may drive additional investment in compliance or control infrastructure. With the Supreme Court’s decision pending, taking proactive measures now will position operators to navigate this potentially stricter landscape. Now more than ever, the best compliance strategy is to apply for an air permit that provides the maximum degree of flexibility for occasional maintenance, malfunctions, and pipeline shut-ins. A well-designed permitting strategy can save countless compliance headaches down the road.
With widespread expertise in Title V permitting and New Mexico regulations, Trinity Consultants can assist operators in conducting permit reviews, assessing existing control technologies, or developing comprehensive compliance strategies. Our priority is helping operators adapt to these regulatory changes and prevent enforcement action.
Please contact Albuquerque’s Principal Consultant, Adam Erenstein, or the Trinity Albuquerque office if you have any further questions or concerns regarding this ruling.
