The Environmental Protection Agency is withdrawing a Biden-era rule that stripped industries of protection against civil liability and penalties for emergency-related violations of Clean Air Act emission limits.
In 2023, the Biden administration removed “emergency affirmative defense” provisions from federal air permitting regulations for stationary sources, known as Title V permits.
Even when operators tried to prevent and mitigate emissions during situations they could not prevent, the EPA said they were still exposed to liability.
Thursday’s move stems from a January court-ordered mandate that reversed the Biden administration’s 2023 Affirmative Defense Rule, requiring the agency to revert to its old framework that distinguishes between liability for noncompliance and noncompliance in extreme circumstances.
A coalition of trade associations that brought the suit argued that removing the defense exposed its members to liability even during genuine, unavoidable emergencies. The court found the rule was “unreasonable and not in accordance with law.”
A slew of environmental groups formally intervened on the EPA’s side when the rule was initially challenged in court in 2023. Earthjustice, an environmental law organization, filed a motion to oppose the industry challenge, arguing companies were using the affirmative defense “to avoid the consequences of releasing unlimited amounts of toxic emissions during emergencies.”
The Washington Times has reached out to Earthjustice for comment.
The EPA said it will “continue to hold bad actors accountable for enforcement violations but will no longer unjustly punish good faith operators for emissions caused by sudden, unavoidable events.”
Regulated industries now have a pathway to demonstrate that excess emissions were unavoidable and properly managed, the EPA said, adding that it’s encouraging them to invest in prevention, maintenance and rapid response systems.
Under the restored regulation, facilities can demonstrate that excess emissions are caused by unavoidable emergencies and must notify permitting authorities within two working days.
An emergency does not include noncompliance caused by improperly designed equipment, lack of preventive maintenance, careless or improper operation, or operator error.
Those who “act in good faith” and follow required response procedures will not be punished.
EPA Assistant Administrator Aaron Szabo said this action “restores a balanced, commonsense framework that protects both the environment and the continued viability of American manufacturing and energy production.”
