On June 1, 2026, U.S. EPA issued a direct final rule rescinding a 2023 rule that eliminated the Affirmative Defense provisions from state and federal Title V operating permit programs (the “Direct Final Rule”). Issuance of the Direct Final Rule reinstates the Affirmative Defense provisions, effective immediately, which protect a facility from liability for exceeding emission limits resulting from circumstances beyond the facility’s control. U.S. EPA notes that rescission of the 2023 Affirmative Defense rule via direct final action (i.e. without opportunity for public comment) is necessary and appropriate to carry out the D.C. Circuit Court’s September 5, 2025 decision in SSM Litigation Group v. EPA, which reversed the 2023 Affirmative Defense rule thereby rendering the 2023 rule invalid. In SSM Litigation Group, the D.C Circuit held that EPA’s 2023 rule removing the Affirmative Defense provisions was “unreasonable and not in accordance with law.”
U.S. EPA’s rescission of the 2023 Affirmative Defense rule reinstates a framework that distinguishes between liability for noncompliance, and situations where noncompliance occurs as a result of circumstances beyond a facility’s control. The Affirmative Defense provisions that are being reinstated define 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.” 40 CFR 70.6(g)(1), as effective 2022. The reinstated regulations also provide that an emergency constitutes “an affirmative defense to an action brought for noncompliance with such technology-based emission limitations” if certain conditions are met. 40 CFR 70.6(g)(2), as effective 2022. To that end, facilities seeking protection under the Affirmative Defense provisions must demonstrate that: an emergency occurred and identify the cause of the emergency; the facility was being operated properly at the time of the emergency; the facility took all reasonable steps to minimize levels of emissions that exceeded applicable standards during the emergency; and submit a notice of the emergency to the permitting authority within two working days after emission limits were exceeded due to the emergency.
With the Affirmative Defense provisions back in place, manufacturers, energy producers, and other industrial facilities are able demonstrate that excess emissions are caused by unavoidable emergencies and, thus, avoid liability for noncompliance with prescribed emission limits resulting from circumstances beyond the facility’s control. Additionally, state permitting authorities are no longer required to submit revisions to their Title V operating permit programs or revise existing operating permits to implement the requirements of the 2023 Affirmative Defense rule.
It is important to note that the Direct Final Rule is specific to the Affirmative Defense provision for “emergencies” under the Title V operating permit program. The Direct Final Rule does not address U.S. EPA’s prior mandate – the 2015 SSM SIP Call (80 Fed. Reg. 33840, June 12, 2015) – that states remove startup, shutdown, and malfunction (SSM) provisions from their State Implementation Plans. See U.S. EPA’s 2024 Guidance Memorandum addressing the implications of the D.C. Circuit’s vacatur of the 2015 SSM SIP Call.