2026-10875: Rescission of Title V Emergency Affirmative Defense Rule

Federal Register, Volume 91 Issue 104 (Monday, June 1, 2026) [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 [www.gpo.gov] [FR Doc No: 2026-10875] ======================================================================= ----------------------------------------------------------------------- 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. -----------------------------------------------------------------------

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: [email protected].

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 https://www.regulations.gov. 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 https://www.regulations.gov. 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

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\ --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \6\ 88 FR at 47030, 47039. \7\ Id. at 47030-31. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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). ---------------------------------------------------------------------------

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. --------------------------------------------------------------------------- \10\ 5 U.S.C. 553(b)(B). ---------------------------------------------------------------------------

V. Statutory and Executive Order Reviews

Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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\ --------------------------------------------------------------------------- \11\ 42 U.S.C. 7607(b)(1). \12\ Id. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \13\ Calumet, 605 U.S. at 636-39. \14\ Id. at 642. --------------------------------------------------------------------------- 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