EPA has proposed a revision to its Title V operating permit regulations that would eliminate the affirmative defense for emissions occurring during “emergency” events. Published in the Federal Register on June 14, 2016, the proposed modification would delete 40 CFR 70.6(g), applicable to state operating permit programs, and 40 CFR 71.6(g), applicable to federal operating permit programs. The 60-day public comment period closed on August 15, 2016.

In the proposal, EPA claims that the removal of the “emergency” affirmative defense is required by a recent decision of the D.C. Circuit Court of Appeals in NRDC v. EPA, in which the court struck down the affirmative defense provision for malfunction events contained in the Clean Air Act (CAA) §112 NESHAP for Portland cement facilities. EPA interprets the court’s holding in the NRDC case to apply broadly to most affirmative defense provisions.

The removal of the “emergency” affirmative defense is part of a larger effort by EPA to remove affirmative defenses from regulations across a variety of CAA regulatory programs. As discussed by EPA in the preamble to this proposal, in June 2015 the agency issued a “SSM SIP Call,” which found 36 state Title V regulatory programs deficient because they contained affirmative defenses for emissions occurring during periods of startup, shutdown or malfunction. EPA has consistently either removed or omitted affirmative defenses from the NSPS and NESHAP standards it has promulgated since 2014.

EPA anticipates that many states will be required to amend their Title V permitting regulations to conform with the proposed removal of the emergency affirmative defense from the federal Title V permitting regulations. EPA has compiled a “tentative” list of affirmative defense provisions in state permitting regulations that may require revision and placed this list in the rulemaking docket related to the proposal (EPA-HQ-OAR-2016-0186). EPA anticipates that states will need 12 months after the effective date of the final rule to make conforming changes but is soliciting comment on whether additional time may be required, particularly in states that may require legislation in order to make changes to their Title V permitting programs. With respect to individual permits that contain emergency affirmative defense provisions, EPA’s proposal directs states to remove affirmative defense provisions from existing permits at the “first situation in which the permitting authority must act on an individual permit after state program revisions are approved by EPA.”