D.C. Circuit Reinstates EPA's Title V Affirmative Defense for Emergency Emissions Events

What's Happening?

The D.C. Circuit Court has reversed the Environmental Protection Agency's (EPA) decision to rescind the Title V affirmative defense for emergency emissions events. This defense allows facilities with Title V permits to avoid civil penalties for temporary emission exceedances during emergencies, provided certain conditions are met. The EPA had previously argued that the defense was impermissible as it limited judicial authority and functioned as an exemption to emission standards. However, the court ruled that the EPA has the authority under the Clean Air Act to create complete defenses via rulemaking, and distinguished between an affirmative defense and an exemption. The court's decision reinstates the affirmative defense, which will be restored upon the issuance of the court's mandate.

Why It's Important?

The court's decision has significant implications for facilities holding Title V permits, which include major sources of air pollution such as power plants and refineries. The reinstatement of the affirmative defense provides clarity and legal protection for these facilities during unforeseen emergencies, ensuring they are not penalized for temporary emission exceedances. This ruling may influence how state regulators align their permitting programs with federal standards, and could impact the EPA's future regulatory initiatives under the Clean Air Act. Companies must now ensure their permits include the affirmative defense and monitor the EPA's response to this decision.

What's Next?

Title V permit holders should verify the inclusion of the affirmative defense in their permits and consider amending permits if necessary. They should also engage with state regulators to ensure alignment with the D.C. Circuit's ruling. The EPA's response to the decision will be crucial, as it may affect ongoing and future enforcement actions. Companies should remain vigilant in monitoring regulatory changes and prepare for potential adjustments in compliance strategies.