August 23, 2023

Title V Emergency Affirmative Defense Provisions Removed

On July 21, 2023, EPA removed the “emergency” affirmative defense provisions from CAA Title V operating permit regulations. [88 FR 47029] These provisions allowed sources to avoid liability during enforcement cases brought for noncompliance with technology-based emission limitations, provided the emission exceedances occurred due to qualifying emergency circumstances. The operating permit regulations previously defined “emergency” as follows:

“An ‘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.” [40 CFR 70.6(g)(1)]

The agency found the emergency affirmative defense provisions in §§70.6(g) and 71.6(g) were inconsistent with the enforcement structure of the CAA in light of recent court decisions, particularly NRDC vs. EPA. [U.S. Court of Appeals, D.C. Circuit; Docket No. 10-1371; April 18, 2014] In summary, the court decided EPA lacked the authority under the CAA to create an affirmative defense to civil penalties and consequently vacated the emergency affirmative defense provisions.

The agency states it doesn’t expect the removal of these provisions to substantially affect the legal rights of Title V sources or the decisions sources make when confronted with emergencies. Such sources will always need to assess their liability risk when confronted with an emergency that could result in an emission exceedance. Additionally, the emergency affirmative defense provisions were not guaranteed protections from liability. Instead, they simply allowed a source to have a defense in the case of an emission exceedance during a narrowly defined emergency.” [88 FR 47041 and 47044]

Removal of the regulatory provisions is effective August 21, 2023. States must remove any impermissible affirmative defense provisions from their Title V permitting programs and remove such provisions from individual operating permits no later than the next permit revision or renewal.

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This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.