On July 21, 2023, the US Environmental Protection Agency (EPA) issued a final rule set to impact the way sources maneuver around liability for permit violations via an “emergency” under Title V of the Clean Air Act. This new regulation is anticipated to make it more difficult for such situations to be considered, constraining the usage of such defensive strategy. The news was reported by ArentFox Schiff.
Previously, Title V air permit holders could claim an “emergency affirmative defense” in case of unexpected or uncontrollable circumstances that might lead to the violation of their permit’s requirements. This practice has been contentious for some time, dividing opinions among legal and environmental experts, due to its potential for misuse. The newly issued rule by the EPA effectively removes this emergency defense, marking a significant change in the regulatory landscape.
This course of action by the EPA is the result of intricate negotiations and discussions with interest groups, industry representatives, and environmental advocates. While the removal of the emergency affirmative defense is seen as controversial by some, others regard it as a vital step towards more rigorous enforcement of the Clean Air Act’s stipulations.
Many large corporations and industries holding Title V air permits will need to reassess their legal strategies in the wake of this development. The potential increase in liability exposure coupled with greater enforcement of permit requirements compels a reconsideration of risk management plans. Legal professionals specializing in environmental law will be in heightened demand to navigate these new complexities.