The Title V Emergency Affirmative Defense Is Back. Is Your Facility Ready to Use It?

Effective June 1, 2026, EPA restored the Title V emergency affirmative defense for excess emissions — reinstating 40 C.F.R. § 70.6(g) and § 71.6(g) exactly as they existed before the Biden administration removed them in July 2023. The Federal Register publication (91 Fed. Reg. 32357) is the final rule. No comment period. No phase-in. The defense is available now for future excess-emissions events at major stationary sources holding Title V operating permits.

This is not a minor regulatory housekeeping item. For the past three years, facilities that exceeded technology-based emission limitations during genuine emergencies — equipment failures, natural disasters, sudden mechanical malfunctions — had no federal affirmative defense against civil penalty liability. Every excess-emissions event during that period carried full exposure under CAA § 113: up to $37,500 per day per violation, plus potential citizen suits under CAA § 304 from environmental groups who knew the defense was gone.

That changes on June 1, 2026. But “the rule is back” is not the same as “your facility can use it.” The defense has specific requirements that must be satisfied in real time — not reconstructed after an inspector or plaintiff’s attorney comes calling.

How We Got Here: A Decade of Regulatory Reversal

The emergency affirmative defense has been in EPA’s Title V regulations since 1992. The underlying logic was straightforward: even well-maintained, properly operated facilities experience unavoidable mechanical failures. A refinery flare system fails during a storm. A boiler control valve malfunctions at 2 a.m. A sudden process upset at a chemical plant generates a brief emissions spike before operators can respond. These events happen. The 1992 regulations recognized that subjecting a source to civil penalties for excess emissions caused by a genuine, unforeseeable emergency — where operators acted in good faith and took all reasonable steps to minimize emissions — was a different situation from a facility that routinely exceeded its permit limits.

The erosion started with NRDC v. EPA, 749 F.3d 1055 (D.C. Cir. 2014), which vacated an SSM (startup, shutdown, and malfunction) affirmative defense in EPA’s hazardous air pollutant rules. The D.C. Circuit held that affirmative defenses that limited available civil remedies encroached on the judiciary’s role in penalty assessment. EPA read that decision broadly and ultimately applied it to the Title V emergency provisions. On July 21, 2023, EPA issued a final rule (88 Fed. Reg. 47029) deleting § 70.6(g) and § 71.6(g) and requiring states to revise their own Title V programs to remove parallel provisions.

Then the legal ground shifted again. In September 2024, the D.C. Circuit in Environmental Committee of the Florida Electric Power Coordinating Group, Inc. v. EPA vacated most of EPA’s 2015 SIP Call — the rule that had forced states to remove startup, shutdown, and malfunction provisions from their State Implementation Plans. That decision created a distinction the court then applied directly to the Title V emergency defense: there is a difference between a defense that limits available remedies (which the court found problematic in NRDC) and a complete affirmative defense that addresses liability itself (which the court held is permissible).

On September 5, 2025, the D.C. Circuit applied that distinction to the Title V emergency defense in SSM Litigation Group v. EPA, No. 23-1267. The court reversed the 2023 removal rule on both of EPA’s stated justifications. First: the NRDC holding on remedy-limiting defenses does not extend to complete affirmative defenses like § 70.6(g), which addresses whether a source is liable before any remedy analysis begins. Second: an affirmative defense does not render an emission limitation non-”continuous” under the CAA, because the defense relieves liability without changing the underlying standard.

EPA was required to implement the court’s mandate. The June 1, 2026 rescission rule does exactly that — and nothing more. It restores the prior regulatory text verbatim. It does not add new requirements, create new exemptions, or otherwise modify the scope of the restored defense.

What the Title V Emergency Affirmative Defense Actually Requires

Environmental managers who haven’t worked with § 70.6(g) in the past few years — or who joined their current role after 2023 when the defense didn’t exist — need to understand what the regulation actually requires. This is not a passive protection. It is an affirmative defense, which means the burden of proof is on the facility to establish each element.

Under the restored 40 C.F.R. § 70.6(g), a permittee asserting the defense must demonstrate all of the following:

1. An “emergency” occurred as defined. The regulation defines 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.”

The word “reasonably unforeseeable” does most of the work in enforcement disputes. An equipment failure that your maintenance logs show has happened three times in the past two years is not reasonably unforeseeable. A flare control system that failed because it wasn’t maintained per manufacturer specifications is not an emergency — it is a maintenance failure. The distinction between an emergency and a chronic malfunction will be the central factual dispute in any enforcement action where the defense is invoked.

2. The facility was being properly operated. Good operations and maintenance practices must be documented. This includes preventive maintenance schedules, operator training records, operating procedures for normal and abnormal conditions, and inspection logs. If the excess emissions occurred because a piece of equipment that should have been inspected wasn’t, the defense is difficult to sustain.

3. All reasonable steps were taken to minimize excess emissions during and after the emergency. Operators must demonstrate they acted immediately and did everything available to reduce emissions while restoring normal operations. Dispatch logs, operator field notes, and incident command records establish this.

4. Notice to the permitting authority within two working days. This is the requirement that fails most often in enforcement situations — not because facilities don’t know about it, but because the two-day clock is shorter than most facilities’ internal review-and-approval cycle for sending external communications. If the notice doesn’t go out in two working days from when the permittee “knew or should have known” of the excess emissions, the defense is forfeited regardless of whether every other element is met.

5. Written documentation of the emergency is prepared and maintained. This documentation needs to explain the emergency, describe the corrective actions taken, identify the emission limitations exceeded, and demonstrate that the facility meets the criteria above. This is not a form — it is a narrative record that will be reviewed by enforcement counsel.

The defense applies only to technology-based emission limitations in the Title V permit. It does not shield facilities from violations of ambient air quality-based limits, or any non-technology-based requirement. If your permit contains both technology-based and ambient-impact-based limits, the defense applies to the former and not the latter.

The Gap Period: Three Years Without a Shield

Between July 21, 2023, and June 1, 2026, the federal emergency affirmative defense did not exist. Facilities that experienced excess-emissions events during that period had no § 70.6(g) defense available. The June 1, 2026 rescission is prospective — it restores the defense going forward, not retroactively.

For facilities with open or pending enforcement actions for excess-emissions events that occurred during the gap period, the restoration of § 70.6(g) does not automatically change the legal landscape of those cases. However, it does change the broader enforcement context: the current EPA administration has signaled clearly that it intends to distinguish between good-faith operators responding to genuine emergencies and bad-faith operators who ignore permit requirements. Facilities navigating gap-period enforcement actions should work with experienced environmental counsel to assess whether the current EPA enforcement posture affects penalty negotiations.

The more immediate compliance question is simpler: for all of those gap-period excess-emissions events, does your facility have complete documentation that would have satisfied the § 70.6(g) requirements? If a question ever arises about those events — even outside of formal enforcement, in the context of a permit renewal or facility audit — that documentation matters.

What Environmental Managers Need to Do Now

Confirm your state’s current Title V program status

The rescission restores federal regulatory text at 40 C.F.R. §§ 70.6(g) and 71.6(g). It does not automatically revise state-administered Title V programs. Under the 2023 removal rule, states were required to revise their own programs and individual permits to remove affirmative defense provisions. States that completed those revisions may still reflect the removal in their own regulations until they take a conforming action.

In Kansas, Missouri, Oklahoma, Nebraska, Texas, and Colorado — iSi’s primary service region — environmental managers should confirm with their state permitting agency (KDHE, MDNR, ODEQ, NDEE, TCEQ, CDPHE) what the current state-level status is and whether any permit modification is needed to restore the defense’s availability at the state level. Do not assume that federal restoration equals state restoration without checking.

Audit your emergency response documentation system

The § 70.6(g) two-working-day notice requirement is the element that most often cannot be reconstructed after the fact. Most facilities have incident response protocols that are designed to protect workers and restore operations — which is exactly right. Fewer facilities have protocols that simultaneously generate the regulatory documentation required to preserve the affirmative defense. Before the next emergency, confirm:

Who is responsible for notifying the permitting authority within two working days, and how is that clock tracked?
Where is the written incident documentation maintained, and does it capture all the § 70.6(g) elements?
Are operators trained to distinguish between an “emergency” triggering the defense and a “malfunction” that does not?
Are maintenance records current and complete enough to support the “properly operated” element?

These questions are easier to answer in a tabletop exercise than during an actual equipment failure at 3 a.m.

Review individual permit terms

If your Title V permit was specifically revised between 2023 and 2026 to remove emergency affirmative defense language pursuant to the removal rule, a conforming permit modification may be needed to restore it explicitly. Confirm current permit language with your state permitting authority.

The Counter-Argument: Why This Isn’t a Free Pass

Environmental groups opposed the 2023 removal rule’s rescission and opposed the affirmative defense before that. The NRDC and Sierra Club will continue to press citizen suits under CAA § 304 and will argue the defense is being applied too broadly when facilities invoke it for events that weren’t genuinely unforeseeable.

The D.C. Circuit’s SSM Litigation Group decision validated the defense for complete liability questions — it did not resolve every dispute about where the boundary between “emergency” and “chronic malfunction” falls. Facilities that invoke § 70.6(g) for excess-emissions events that look like recurring operational problems rather than genuine emergencies will face that factual challenge in enforcement. The defense is narrow, its elements are mandatory, and the documentation requirements are not flexible.

A well-run compliance program doesn’t depend on whether the emergency affirmative defense exists at any given moment. It operates the equipment correctly, maintains it properly, and trains personnel to respond to abnormal situations in ways that minimize both emissions and enforcement exposure. The defense exists for genuine emergencies. That it is restored is good news. That it requires excellent underlying operations to be available is the point.

For Title V Sources in iSi’s Service Region

If you operate a major stationary source in Kansas, Missouri, Oklahoma, Nebraska, Texas, or Colorado and haven’t reviewed your Title V permit compliance program recently, this rule change is a natural trigger for that review. The emergency affirmative defense is one provision. The broader question is whether your permit compliance documentation system is current, complete, and capable of generating the records you need if an enforcement action or citizen suit arises.

iSi’s air permit and Title V compliance practice supports major sources across 40 states — from potential-to-emit calculations and permit applications to compliance program audits and annual certification support. If your facility is navigating the gap-period documentation question, a state-level Title V program status check, or an overdue review of your emergency response protocols under the restored § 70.6(g), that is exactly what our COOP retainer is designed to handle. The retainer clients in your region received an advisory on this rule change the week it published — because that’s what the retainer is for.