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Rule2026-10875

Rescission of Title V Emergency Affirmative Defense Rule

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Published

June 1, 2026

Effective

June 1, 2026

Issuing agencies

Environmental Protection Agency

Abstract

The U.S. Environmental Protection Agency (EPA) is rescinding a 2023 final rule titled "Removal of Title V Emergency Affirmative Defense Provisions From State Operating Permit Programs and Federal Operating Permit Program" ("2023 Affirmative Defense Rule"). The 2023 Affirmative Defense Rule removed emergency-related affirmative defense provisions from Federal regulations governing title V operating permit programs. The EPA is taking this final action in response to a September 5, 2025, decision of the U.S. Court of Appeals for the District of Columbia (DC) Circuit which reversed the EPA's 2023 Affirmative Defense Rule. This rescission is necessary to carry out the court's mandate and reinstates the emergency-related affirmative defense provisions as they existed in the Code of Federal Regulations (CFR) before promulgation of the 2023 Affirmative Defense Rule.

Full Text

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<title>Federal Register, Volume 91 Issue 104 (Monday, June 1, 2026)</title>
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[Federal Register Volume 91, Number 104 (Monday, June 1, 2026)]
[Rules and Regulations]
[Pages 32357-32360]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-10875]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 70 and 71

[EPA-HQ-OAR-2016-0186; FRL-8961.1-02-OAR]
RIN 2060-AX05

Rescission of Title V Emergency Affirmative Defense Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) is rescinding a
2023 final rule titled ``Removal of Title V Emergency Affirmative
Defense Provisions From State Operating Permit Programs and Federal
Operating Permit Program'' (``2023 Affirmative Defense Rule''). The
2023 Affirmative Defense Rule removed emergency-related affirmative
defense provisions from Federal regulations governing title V operating
permit programs. The EPA is taking this final action in response to a
September 5, 2025, decision of the U.S. Court of Appeals for the
District of Columbia (DC) Circuit which reversed the EPA's 2023
Affirmative Defense Rule. This rescission is necessary to carry out the
court's mandate and reinstates the emergency-related affirmative
defense provisions as they existed in the Code of Federal Regulations
(CFR) before promulgation of the 2023 Affirmative Defense Rule.

DATES: This final rule is effective on June 1, 2026.

FOR FURTHER INFORMATION CONTACT: For information about this final rule,
contact Sydney Lawrence, Permitting and Program Support Division,
Office of State Air Partnerships, Environmental Protection Agency, 109
T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone
number: (919) 541-4768; email address: <a href="/cdn-cgi/l/email-protection#f09c918782959e9395de8389949e9589b0958091de979f86"><span class="__cf_email__" data-cfemail="bcd0ddcbced9d2dfd992cfc5d8d2d9c5fcd9ccdd92dbd3ca">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION: Docket. The EPA has established a docket for
this action under Docket ID No. EPA-HQ-OAR-2016-0186. All documents in
the docket are listed in <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Although listed,
some information is not publicly available, e.g., Confidential Business
Information (CBI) or other information the disclosure of which is
restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
as PDF versions that can only be accessed on the EPA computers in the
docket office reading room. Certain databases and physical items cannot
be downloaded from the docket but may be requested by contacting the
docket office at (202) 566-1744. With the exception of such material,
publicly available docket materials are available electronically at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Preamble acronyms and abbreviations. Throughout this preamble, the
use of ``we,'' ``us,'' or ``our'' is intended to refer to the EPA. We
use multiple acronyms and terms in this preamble. While this list may
not be exhaustive, to ease the reading of this preamble and for
reference purposes, the EPA defines the following terms and acronyms
here:

APA Administrative Procedure Act
CAA Clean Air Act
CFR Code of Federal Regulations
EPA Environmental Protection Agency
FR Federal Register
OMB Office of Management and Budget
PBI Proprietary Business Information
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code

Table of Contents

I. General Information
A. Does this action apply to me?
B. Why is the EPA issuing this final rule?
II. Background
III. Basis for the Final Rule
IV. Final Rule
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Executive
Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 14192: Unleashing Prosperity Through
Deregulation
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act of 1995 (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Congressional Review Act (CRA)
VI. Statutory Authority

[[Page 32358]]

VII. Judicial Review

I. General Information

A. Does this action apply to me?

Entities potentially affected by this final rule include Federal,
State, local, and Tribal air pollution control agencies that administer
title V operating permit programs, and owners and operators of
emissions sources in all industry groups who hold or apply for title V
operating permits.

B. Why is the EPA issuing this final rule?

The EPA is taking this action in response to the decision of the
U.S. Court of Appeals for the D.C. Circuit in SSM Litigation Group v.
EPA, 150 F.4th 593 (D.C. Cir. 2025) (``SSM Litigation Group''). In that
decision, the D.C. Circuit found that the EPA's 2023 Affirmative
Defense Rule,\1\ which removed emergency-related affirmative defense
provisions from Federal regulations governing title V operating permit
programs and required States to remove such provisions from State
operating permit programs and State-issued operating permits, was
``unreasonable and not in accordance with law.'' \2\ The court issued
the mandate in this case on January 12, 2026. The court's decision
invalidated the 2023 Affirmative Defense Rule, and the EPA is now
taking action to rescind the rule.
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\1\ ``Removal of Title V Emergency Affirmative Defense
Provisions From State Operating Permit Programs and Federal
Operating Permit Program,'' 88 FR 47029 (July 21, 2023).
\2\ 150 F. 4th at 599-600.
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II. Background

On July 21, 2023, the EPA issued the 2023 Affirmative Defense Rule
that rescinded the longstanding emergency-related affirmative defense
provisions previously codified in the Agency's operating permit program
regulations at 40 CFR 70.6(g) and 71.6(g).\3\ The previously rescinded
affirmative defense provisions that are now being reinstated define an
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.'' \4\ The
regulations also provide that an emergency constitutes ``an affirmative
defense to an action brought for noncompliance with such technology-
based emission limitations'' if certain conditions are met.\5\
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\3\ Id. Parts 70 and 71 of title 40 of the CFR contain the
requirements for State operating permit programs and the Federal
operating permit program, respectively.
\4\ 40 CFR 70.6(g)(1) (as effective 2022).
\5\ 40 CFR 70.6(g)(2) (as effective 2022).
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The 2023 Affirmative Defense Rule rescinded these longstanding
provisions based on the EPA's conclusion that they were legally
impermissible under the Clean Air Act (CAA).\6\ As a result, the
preamble to the 2023 Affirmative Defense Rule explained that removal of
these provisions from the EPA's regulations meant that States were
likewise required to remove from their operating permit program
regulations and from existing operating permits any State affirmative
defense provisions that were based on the rescinded Federal
provisions.\7\
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\6\ 88 FR at 47030, 47039.
\7\ Id. at 47030-31.
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SSM Litigation Group filed a petition for review of the 2023
Affirmative Defense Rule in the D.C. Circuit, challenging the EPA's
basis for rescinding the title V affirmative defense provisions. On
September 5, 2025, the court issued a decision finding that the 2023
Affirmative Defense Rule rested entirely on erroneous legal
justifications.\8\ On January 12, 2026, the court issued its mandate in
the case.\9\
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\8\ SSM Litigation Group, 150 F.4th at 600.
\9\ SSM Litigation Group v. EPA, Case No. 23-1267, Document
2152683 (order denying petition for rehearing, filed Jan. 2, 2026)
and Document 2153880 (mandate, filed Jan. 12, 2026).
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III. Basis for the Final Rule

Because the D.C. Circuit in SSM Litigation Group reversed the 2023
Affirmative Defense Rule, the rule is now invalid. Accordingly, the EPA
must rescind the 2023 Affirmative Defense Rule and restore the
longstanding regulatory text that existed prior to that rule.

IV. Final Rule

The EPA is rescinding the 2023 Affirmative Defense Rule, consistent
with the D.C. Circuit's decision in SSM Litigation Group. The effect of
this action is to restore the text of 40 CFR 70.6(g) and 71.6(g) as
these provisions existed before the EPA promulgated the 2023
Affirmative Defense Rule (i.e., to reinstate the emergency-related
affirmative defense provisions in 40 CFR 70.6(g) and 71.6(g) that the
2023 Affirmative Defense Rule rescinded). As a result of this final
action, State, local, and Tribal permitting authorities are no longer
required to submit revisions to their title V operating permit programs
or to revise existing operating permits to implement the requirements
of the 2023 Affirmative Defense Rule.
The EPA is taking this action as a final rule without providing an
opportunity for public comment or a public hearing because the Agency
finds that the Administrative Procedure Act (APA) ``good cause''
exemption applies. In general, the APA requires that general notice of
proposed rulemaking be published in the Federal Register, and that such
notice must provide an opportunity for public participation in the
rulemaking process. However, the APA authorizes an agency to directly
issue a final rulemaking in certain specific instances. This may occur
when an agency for good cause finds (and incorporates the finding and a
brief statement of reasons in the rule issued) that notice and public
participation are ``impracticable, unnecessary, or contrary to the
public interest.'' \10\ Because the D.C. Circuit in SSM Litigation
Group reversed the 2023 Affirmative Defense Rule, the rule is no longer
valid and the EPA must rescind it. The EPA has determined that it is
unnecessary to provide a public hearing or an opportunity for public
comment on this action because the rescission of the 2023 Affirmative
Defense Rule is a ministerial act necessary to carry out the D.C.
Circuit's mandate in SSM Litigation Group. Because this action involves
no exercise of Agency discretion and instead merely implements the
binding decision of the court, it would serve no useful purpose to
provide an opportunity for public comment or a public hearing on this
action. For these reasons, the EPA finds good cause under 5 U.S.C.
553(b)(B) to issue a final rule without undergoing public notice and
comment. For the same reasons, the EPA finds that good cause exists
under 5 U.S.C. 553(d)(3) to make this final rule effective immediately.
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\10\ 5 U.S.C. 553(b)(B).
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V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive orders
can be found at <a href="https://www.epa.gov/laws-regulations/laws-and-executive-orders">https://www.epa.gov/laws-regulations/laws-and-executive-orders</a>.

A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review

This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.

[[Page 32359]]

B. Executive Order 14192: Unleashing Prosperity Through Deregulation

This action is considered an Executive Order 14192 deregulatory
action. This final rule provides burden reduction because State, local,
and Tribal permitting authorities are no longer required to submit
revisions to their title V operating permit programs, or to revise
existing operating permits.

C. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under
the provisions of the PRA. This final action does not establish any new
information collection requirement apart from what is already required
by law. In this action, the EPA is reinstating certain provisions in
the Agency's regulations. This action does not involve any requests for
information, recordkeeping or reporting requirements, or other
requirements that would constitute an information collection under the
PRA

D. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Entities
potentially affected directly by this proposal include State, local,
and Tribal governments, and none of these governments would qualify as
a small entity. Other types of small entities, including stationary
sources of air pollution, are not directly subject to the requirements
of this action.

E. Unfunded Mandates Reform Act of 1995 (UMRA)

This action does not contain an unfunded mandates as described in
the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely
affect small governments. The action imposes no enforceable duty on any
State, local, or Tribal governments or the private sector.

F. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the National Government and the States, or on the distribution of power
and responsibilities among the various levels of government.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

This action does not have Tribal implications as specified in
Executive Order 13175. This action rescinds a previous final rulemaking
requiring the removal of emergency affirmative defense provisions from
part 70 and part 71 operating permit programs. No Tribal government is
subject to a requirement to revise their operating permit programs as a
result of this action. Thus, Executive Order 13175 does not apply to
this action.

H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern health or safety risks that the Agency
has reason to believe may disproportionately affect children, per the
definition of ``covered regulatory action'' in section 2-202 of the
Executive order.
Therefore, this action is not subject to Executive Order 13045
because it does not concern an environmental health risk or safety
risk. Since this action does not concern human health, EPA's Policy on
Children's Health also does not apply.

I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution or Use

This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act (NTTAA)

This final action does not involve technical standards.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and the EPA will submit a rule
report to each House of Congress and to the Comptroller General of the
United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

VI. Statutory Authority

The statutory authority for this action is provided in CAA sections
502(b) and 502(d)(3), 42 U.S.C. 7661a(b) and (d)(3), which direct the
Administrator of the EPA to promulgate regulations establishing State
operating permit programs and give the Administrator the authority to
establish a Federal operating permit program. Additional authority for
this action is provided in 5 U.S.C. 553(b)(B) and (d)(3), which
authorize the EPA to find that good cause exists to forego notice and
public procedure and to issue a final rule that is effective
immediately upon publication in the Federal Register.

VII. Judicial Review

CAA section 307(b)(1) governs judicial review of final actions by
the EPA. This section generally provides that petitions for review of
final actions that are nationally applicable must be filed in the U.S.
Court of Appeals for the D.C. Circuit, and petitions for judicial
review of actions that are locally or regionally applicable must be
filed in the appropriate regional circuit.\11\ However, petitions for
judicial review of a final action that is locally or regionally
applicable must be filed in the D.C. Circuit when ``such action is
based on a determination of nationwide scope or effect and if in taking
such action the Administrator finds and publishes that such action is
based on such a determination.'' \12\
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\11\ 42 U.S.C. 7607(b)(1).
\12\ Id.
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As the Supreme Court recently articulated in EPA v. Calumet, 605
U.S. 627 (2025), the first step in determining the appropriate venue
for judicial review of an EPA final action is to ascertain whether the
action at issue is ``nationally applicable'' or ``locally or regionally
applicable.'' \13\ To determine whether an action is ``nationally
applicable'' or ``locally or regionally applicable,'' courts ask
``whether the action `[o]n its face' applies throughout the entire
country, or only to particular localities or regions.'' Calumet, 605
U.S. at 638. If the action is nationally applicable, venue lies in the
D.C. Circuit. If the action is locally or regionally applicable, the
second step is to determine whether the EPA has appropriately invoked
the ``nationwide scope or effect'' exception to ``override the default
rule'' that judicial review of a locally or regionally applicable
action belongs in the appropriate regional circuit.\14\
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\13\ Calumet, 605 U.S. at 636-39.
\14\ Id. at 642.
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This final action is ``nationally applicable'' within the meaning
of CAA section 307(b)(1). This final action rescinds a previous final
action that had revised both the regulatory requirements in 40 CFR part
70 that govern State, local, Tribal, and U.S. territorial operating
permit programs nationwide and the regulatory requirements in 40 CFR
part 71 that govern Federal operating permits nationwide. Because this
action rescinds a nationally applicable action, thereby reinstating
nationally applicable title V regulations that had been rescinded in
that action, this final action is also nationally applicable.
Per CAA section 307(b)(1), petitions for judicial review of this
action must be filed in the U.S. Court of Appeals for the D.C. Circuit
by July 31, 2026. Filing a petition for reconsideration by the

[[Page 32360]]

Administrator of this final action does not affect the finality of the
action for the purposes of judicial review or extend the time within
which a petition for judicial review must be filed and shall not
postpone the effectiveness of such rule or action.

List of Subjects

40 CFR Part 70

Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.

40 CFR Part 71

Environmental protection, Administrative practice and procedure,
Air pollution control, Reporting and recordkeeping requirements.

Lee Zeldin,
Administrator.

For the reasons stated in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:

PART 70--STATE OPERATING PERMIT PROGRAMS

0
1. The authority citation for part 70 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq

0
2. In Sec. 70.6, add paragraph (g) to read as follows:

Sec. 70.6 Permit content.

* * * * *
(g) Emergency provision--(1) Definition. An ``emergency'' means 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. An emergency shall not include
noncompliance to the extent caused by improperly designed equipment,
lack of preventative maintenance, careless or improper operation, or
operator error.
(2) Effect of an emergency. An emergency constitutes an affirmative
defense to an action bought my noncompliance with such technology-based
emission limitations if the conditions of paragraph (g)(3) of this
section are met.
(3) Demonstration. The affirmative defense of emergency shall be
demonstrated through properly signed, contemporaneous operating logs,
or other relevant evidence that:
(i) An emergency occurred and that the permittee can identify the
cause(s) of the emergency;
(ii) The permitted facility was at the time being properly
operated;
(iii) During the period of the emergency the permittee took all
reasonable steps to minimize levels of emissions that exceeded the
emission standards, or other requirements in the permit; and
(iv) The permittee submitted notice of the emergency to the
permitting authority within 2 working days of the time when emission
limitations were exceeded due to the emergency. This notice fulfills
the requirement of paragraph (a)(3)(iii)(B) of this section. This
notice must contain a description of the emergency, any steps taken to
mitigate emissions, and corrective actions taken.
(4) Burden of proof. In any enforcement proceeding, the permittee
seeking to establish the occurrence of an emergency has the burden of
proof.
(5) Applicability. This provision is in addition to any emergency
or upset provision contained in any applicable requirement.

PART 71--FEDERAL OPERATING PERMIT PROGRAMS

0
3. The authority citation for part 71 continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

0
4. In Sec. 71.6, add paragraph (g) to read as follows:

Sec. 71.6 Permit content.

[FR Doc. 2026-10875 Filed 5-29-26; 8:45 am]
BILLING CODE 6560-50-P

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