Title V Emergency Affirmative Defense

Current understanding

Title V operating permits historically included an emergency affirmative defense allowing sources to avoid penalties for noncompliance during genuine emergencies beyond their control. EPA’s 2023 rule removed those provisions, but the D.C. Circuit ordered EPA to reinstate them, and EPA is now rescinding the 2023 rule to comply. The practical effect is to restore a defense that regulated sources can raise in enforcement actions, while critics argue it weakens Clean Air Act enforcement.

Evidence log

• 2026-07-30 — Clean Air Act Operating Permit Program Revisions; California; Amador County Air Pollution Control District, Calaveras County Air Pollution Control District, Great Basin Unified Air Pollution Control District, Northern Sierra Air Quality Management District: 2025 — EPA proposed to approve Title V program revisions by Amador County APCD, Calaveras County APCD, Great Basin Unified APCD, and Northern Sierra AQMD in California that strike emergency affirmative defense provisions from their operating permit rules, consistent with the D.C. Circuit’s rejection of such defenses. (novelty: 2) (novelty: 2)

Open questions

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