EHS Administration, Regulatory Developments

EPA Proposes Removing Emergency Affirmative Defense

On March 28, 2022, the EPA revived an Obama-era proposed regulation that, if enacted as proposed, will remove the emergency affirmative defense provisions found under Title V (40 Code of Federal Regulations (CFR) 70.6(g)) of the Clean Air Act (CAA).

The provision of the act defines an emergency as “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.”

These liability protections are frequently invoked by state and federal permit holders when emergency situations cause the permittees to exceed CAA emissions limits.

The proposed rules state the provisions are being removed because they “are inconsistent with the EPA’s interpretation of the CAA’s enforcement structure and court decisions from the U.S. Court of Appeals for the D.C. Circuit—primarily the 2014 NRDC v. EPA decision.” Additionally, the proposed rule states, “The removal of these provisions is consistent with other EPA actions involving affirmative defenses and would harmonize the enforcement and implementation of emission limitations across different CAA programs.”

The provisions have never been a required element of state operating permit programs. However, some states, local authorities, and tribal permitting authorities include these types of defenses in Title V permits, states the EPA Fact Sheet on the proposed rule.

Although the EPA’s proposed action does not include any findings regarding state, local, or tribal permitting programs, if the rule is finalized as proposed, industry should expect other permitting authorities to follow suit in removing these emergency affirmative defense provisions.

Environmental groups are encouraged by EPA actions to close what they characterize as “loopholes” that endanger communities.

“It’s good news that EPA is finally recognizing the need to remove this malfunction defense from the Clean Air Act permitting rules,” says James Pew, senior attorney and director of the Federal Clean Air Practice for Earthjustice in Washington, D.C., in a Sierra Club press release. “The D.C. federal appeals court struck down this dangerous loophole for uncontrolled pollution releases as blatantly illegal in 2014. Now it’s essential for Administrator Regan to continue to lead on this issue by ending the equally unlawful loopholes for startup, shutdown and malfunction pollution that remain in many air toxics rules. In particular, Administrator Regan needs to remove them right away from EPA’s air toxics rules for the refinery, chemical, and petrochemical sectors, where they are doing serious and continuous harm to neighboring communities.”


The proposed provision removal was first introduced by the Obama administration and published in the Federal Register on June 14, 2016, but it was withdrawn in 2018 by the Trump administration.

In October, the Biden administration “withdrew Trump-era guidance allowing state governments to create exemptions like those covered by the rule, which environmental groups praised … ,” reports The Hill.

The deadline for public comment is May 16, 2022, utilizing Docket ID No. EPA-HQ-OAR-2016-0186. The preferred method for providing comment is through the Federal eRulemaking Portal