Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and the Federal Operating Permit Program

Publication Date: 
Friday, April 1, 2022 - 4:00am

The Environmental Protection Agency (EPA) is re-proposing a document, first proposed in 2016, which would remove the emergency affirmative defense provisions found in the regulations for state and federal operating permit programs under the Clean Air Act (CAA). The purpose of these provisions has been to establish an affirmative defense that sources can assert in civil enforcement cases when noncompliance with certain emission limitations in operating permits occurs because of qualifying ``emergency'' circumstances. These provisions, which have never been required elements of state operating permit programs, are being removed because they are inconsistent with the enforcement structure of the CAA and court decisions from the U.S. Court of Appeals for the D.C. Circuit. 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.

Environmental Protection Agency