New EPA Rule Removes Emergency Defense Waiver In Title V Air Permits

• Published date: 27 July 2023
• Subject Matter: Environment, Environmental Law, Clean Air / Pollution
• Law Firm: Jenner & Block
• Author: Daniel L. Robertson and Allison A. Torrence

On July 21, 2023, the Environmental Protection Agency published a final rule eliminating an affirmative defense for Clean Air Act permit emissions violations caused by "emergency" circumstances.

"Major sources" (i.e. sources with actual or potential emissions above certain emission thresholds) are required under Title V of the Clean Air Act to obtain operating permits. When the EPA originally promulgated rules implementing Title V, the proposed rules did not include an emergency affirmative defense provision. However, the EPA included the provisions in its final rule following requests from commenters. Specifically, 40 C.F.R. Parts 70.6(g) (state operating permit program) and 71.6(g) (federal operating permit program) contained identical affirmative defense provisions whereby a source could avoid liability for an emission violation if the violation was caused by an emergency "arising from sudden and reasonably unforeseeable events beyond the control of the source." This included "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." In such circumstances, a source could demonstrate an emergency affirmative defense by providing evidence that:

1. An emergency occurred and the cause was identified;
2. The facility was at the time being properly operated;
3. The facility took all reasonable steps to minimize emission level exceedances and permit requirements during the emergency and
4. The permittee submitted notice of the emergency to the permitting authority within two working days.

The EPA's attempt to remove the Title V emergency affirmative defense has been around since an initial rule proposal in 2016. However, later administrations did not pursue the proposal until a revised version was introduced in 2022. According to the EPA, the affirmative defense is "inconsistent with the EPA's interpretation of the enforcement structure of the Clean Air Act in light of prior court decisions." In one of those court decisions, Natural Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), the D.C. Circuit Court of Appeals vacated a Title V permit provision that specified an affirmative defense for unavoidable malfunctions. The court held that the EPA exceeded its authority, as only the courts have the authority to decide whether to assess penalties for civil...