EPA Reinstates Title V Emergency Affirmative Defense Provision
On May 28, 2026, the EPA reinstated the emergency affirmative defense provision under Title V of the Clean Air Act. This rule restores regulatory text to existing operating permit standards and aligns with a DC Circuit ruling that invalidated a prior rule from 2023.
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The US EPA's final rule reinstating the emergency affirmative defense provision under Title V was issued on May 28, 2026, restoring the language at 40 C.F.R. §§ 70.6(g) and 71.6(g). This action follows the DC Circuit's ruling on September 5, 2025, which invalidated the 2023 rule that had rescinded these provisions.
The reinstatement allows for an affirmative defense against enforcement for noncompliance during emergencies. Illinois must now consider whether to restore its own similar provisions that were removed in 2023. The reinstatement and recent guidance on SSM provisions indicate a shift back to prior compliance practices under the Clean Air Act, potentially affecting state regulations nationwide.
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