EPA withdraws 2023 rule on emergency emission violations

The Environmental Protection Agency announced it is withdrawing a 2023 rule that removed an affirmative defense for emission violations during emergencies under the Clean Air Act. The 2023 rule had eliminated provisions allowing facilities to avoid civil liability when excess emissions occurred during events operators could not prevent or mitigate.

The agency said the prior policy exposed operators to penalties even when they acted in good faith.

Court ruling prompted reversal Thursday’s action follows a January court order that found the 2023 Affirmative Defense Rule unreasonable and not in accordance with law. The order required the agency to restore the earlier framework that distinguished between ordinary noncompliance and noncompliance during extreme circumstances.

A coalition of trade associations had challenged the 2023 rule, arguing it left members exposed to liability during genuine emergencies. Environmental groups had intervened in support of the rule, with Earthjustice filing a motion claiming companies used the defense to avoid consequences for toxic releases.

New notification and documentation rules Under the restored regulation, facilities must notify permitting authorities within two working days when excess emissions occur. Operators must demonstrate the emissions resulted from unavoidable emergencies and followed required response procedures.

The rule states that emergencies do not include emissions caused by improperly designed equipment, lack of preventive maintenance, careless operation, or operator error. The agency said it will continue to enforce violations by bad actors while shielding good-faith operators from penalties.