September 10, 2025 | By: Tim Sowecke and Tyler A. Self

In its recent decision in SSM Litigation Group v. EPA (published September 5, 2025), the D.C. Circuit struck down EPA’s 2023 rescission of the long-standing Clean Air Act (“CAA”) Title V “emergency affirmative defense,” holding that the agency’s action was arbitrary, capricious, and contrary to law. For three decades, Title V permits contained a narrow defense shielding operators from liability for excess emissions caused by sudden and unforeseeable emergencies, provided the facility was otherwise properly operated and took reasonable steps to minimize emissions.

The U.S. Environmental Protection Agency (“EPA”) rescinded this defense in 2023, reasoning that it unlawfully infringed on judicial authority to impose civil penalties and rendered emission limits non-continuous under the CAA. The D.C. Circuit disagreed, drawing a sharp distinction between impermissible limits on judicial remedies and permissible defenses to liability, and holding that an affirmative defense does not undermine the Act’s requirement for continuous emission standards. The decision restores an important safeguard to regulated entities, clarifies the limits of EPA’s authority when it comes to affirmative defenses and judicial remedies, and underscores the need for agencies to provide legal reasoning and policy rationales when rescinding entrenched regulatory provisions.

Key Takeaways

Emergency Defense Restored

• The D.C. Circuit unanimously restored the Title V Emergency Affirmative Defense, which EPA eliminated in 2023, providing facilities a crucial legal tool to defend against Clean Air Act (“CAA”) violations caused by unforeseeable emergency events.

EPA Authority Limited

• The court reinforced that EPA may not eliminate defenses to liability by recasting them as unlawful intrusions on judicial penalty authority or as “non-continuous” exemptions. The distinction between liability defenses and remedy limitations is central to the decision.

Continuity Requirement Clarified

• The decision makes clear that the Clean Air Act’s requirement for “continuous” emissions standards does not bar the use of affirmative defenses; standards always remain enforceable, even if liability may be avoided in narrow circumstances.

Regulatory Durability Requires Policy Support

• Because EPA offered no independent policy justification for its rescission, the court had little difficulty finding the rule legally defective. Agencies must pair legal reasoning with policy rationale when undoing decades-old programs.

Compliance Strategy Implications

• Facilities should review and update, if needed, compliance plans and reporting protocols (including pre-submission review of Title V deviation reports), Title V permit terms, and enforcement defenses in light of the revived emergency defense, while also recognizing that courts remain the ultimate arbiters of whether the defense applies in a given case.

Background: EPA’s Controversial 2023 Rule Change

For over three decades, EPA regulations provided facilities with an affirmative defense for CAA Title V Permit violations caused by emergency circumstances. This defense allowed facilities to avoid liability for excess emissions during “sudden and reasonably unforeseeable events beyond the control of the source, including acts of God.”

To qualify for the defense, facilities had to demonstrate that: (1) an emergency actually occurred; (2) the facility was being properly operated; and (3) all reasonable steps were taken to minimize excess emissions during the emergency.

The regulations defined an emergency as “any situation arising from sudden and reasonably unforeseeable events beyond the control of the source, including acts of God,” that “causes the source to exceed a technology-based emission limitation under the permit, due to unavoidable increases in emissions attributable to the emergency.” 40 C.F.R. § 70.6(g)(1) (2022). If the emergency defense applied, a permittee would not be found in violation of the Clean Air Act for exceeding emissions limitations.

In 2023, EPA rescinded this long-standing defense in a final rule, arguing it was unlawful on two grounds. First, it encroached on the judiciary’s authority to impose civil penalties; and second, it functioned as an impermissible exemption that rendered emission standards non-continuous in violation of the CAA. The rescission was particularly significant for oil & gas operations, power plants, chemical factories, and other heavy industry sources facing inherent risks of equipment failures, natural disasters, and other emergency events causing temporary emission exceedances despite proper operation and maintenance.

The D.C. Circuit’s Decision: SSM Litigation Group v. EPA

Writing for a unanimous three-judge panel, Judge Neomi Rao comprehensively rejected both of EPA’s legal justifications for eliminating the emergency defense. The court’s analysis provides important clarity on the scope of EPA’s regulatory authority and the nature of affirmative defenses under environmental law.

Affirmative Defense v. Remedial Limitation

The court distinguished between two types of regulatory “defenses”:

• Complete Affirmative Defenses that provide a total defense to liability (i.e., the Title V Emergency Defense).
• Partial Defenses, which only limit available remedies after a violation is established.

Citing its 2024 decision in Environmental Committee of Florida Electric Power Coordinating Group v. EPA, the court emphasized that complete affirmative defenses are permissible because they address the “antecedent question of liability” rather than constraining judicial remedial authority. 94 F.4th 77 (D.C. Cir. 2024).

Defense v. Exemption

The court also rejected EPA’s argument that the emergency defense impermissibly functioned as an exemption from emission standards. The court explained the distinction:

An affirmative defense allows a defendant to avoid liability, but it does not alter the underlying legal requirements. The very concept of an affirmative defense assumes that a legal standard remains in force, because otherwise there would be no claim—and no need for an affirmative defense.

(Internal citations omitted). This confirms that emission standards remain “continuous” even when an affirmative defense is available, because the standards themselves are never suspended or lifted.

What This Means for Title V Permittees

The decision restores a critical defense for Title V facilities facing CAA enforcement actions or citizen suits arising from emergency-related emission exceedances. This is particularly important for oil & gas operations, power generation, chemical manufacturing, refineries, and metals production.

While the emergency defense provides important protection, facilities should remember that it requires strict compliance with specific criteria: the event must be sudden and reasonably unforeseeable; the event must be beyond the facility’s control; the facility must be properly operated during the event; and all reasonable steps must be taken to minimize excess emissions.

To support ongoing compliance, confirm whether your Title V permit incorporates or references the emergency affirmative defense language; ensure operational protocols include a method of clear documentation of emergency events and steps to minimize emissions; and ensure plant operators are up to date with respect to emergency protocols.* EPA is reviewing the decision for potential appeal, though it is not yet clear whether EPA will appeal.

For questions on how this decision may affect your specific operations or compliance obligations, please contact Tim Sowecke, Tyler Self, or other members of GableGotwals’ Environmental and Natural Resources Law Team.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Tyler A. Self
405-235-5589
tself@gablelaw.com

* EPA’s potential appeal would go to the Supreme Court, given the D.C. Circuit’s exclusive jurisdiction over nationally applicable EPA rules.

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

September 8, 2025 | GableGotwals is pleased to announce that Timothy T. (Tim) Jones and Ethan T. Mock have joined the Firm’s Tulsa office as Of Counsel.

Tim Jones has practiced at the forefront of environmental law for more than 30 years – in both industry and government. His experience offers him unique perspectives and enables him to understand environmental issues from every standpoint – having worked as counsel to companies in the food, oil and gas, transportation, manufacturing, and energy sectors, as well as from the perspective of the regulators. Prior to joining the Firm, Tim served as Senior Assistant General Counsel and Assistant Secretary at HF Sinclair, an oil and gas company based in Texas, as well as Senior Counsel to Tyson Foods, one of the country’s largest agribusinesses based in Arkansas. Earlier in his career, Tim worked at the U.S. Environmental Protection Agency (EPA) in both regional and headquarters offices, handling complex enforcement litigation and regulatory matters. He also served as an Assistant Attorney General for the State of Arkansas, where he conducted criminal and civil case preparation and investigations.

“We are thrilled to welcome Tim to the Firm,” said Tim Sowecke, Co-chair of GableGotwals’ Environmental and Natural Resources Law Practice. “Tim’s background is exceptional. He combines high-level regulatory and litigation experience from his time at the Department of Justice and as Regional Counsel at EPA Region 6 with deep in-house leadership at Fortune 500 companies. His arrival represents a strategic investment in the continued growth of our top-notch national environmental practice and enhances our ability to provide clients across industries with practical, business-focused solutions to complex regulatory and litigation challenges.”

Ethan Mock has experience in oil and gas lease processing and title examination, administrative appeals, and tribal and federal regulatory compliance. Prior to joining the Firm, Ethan worked for the Eastern Oklahoma Regional Office of the Bureau of Indian Affairs, where he supervised oil and gas leasing operations across the region, including new lease approvals, assignments, and permitting. He oversaw compliance with federal regulations and the National Environmental Policy Act (NEPA), and communicated directly with the Bureau of Land Management, Office of Natural Resources Revenue, and the Bureau of Trust Fund Administration on regulatory and royalty matters. He also drafted administrative appeal decisions related to oil and gas leasing and surface and subsurface use issues.

“For more than 80 years, GableGotwals attorneys have been advising clients on oil and gas title examination. I am looking forward to collaborating with Ethan as he joins our Title Examination Group. His extensive energy background provides much-needed support for our thriving practice,” said E. Talitha Ebrite, Chair of the Firm’s Title Examination – Oil & Gas Practice.

About GableGotwals
GableGotwals® is a full-service law firm with 100 attorneys and more than 70 other business professionals in Oklahoma and Texas. We represent a diversified client base across the nation, and our connections and reach are global. Fortune 500 corporations, privately owned companies, entrepreneurs, foundations, and individuals entrust us every day with the stewardship and strategic management of their legal challenges.

GableGotwals is ranked Band 1 in Environment by Chambers USA, 2025. Our environmental team includes attorneys with advanced degrees and former energy company executives, combining technical expertise with seasoned litigation and former corporate counsel experience. For more information, click here.

GableGotwals title attorneys work closely with our energy and production company clients in all phases of oil and gas title examination in the state of Oklahoma. From fast-paced due diligence review of key properties in asset purchase or financing transactions, to the rendering of formal drilling opinions, and ultimately the issuance of highly detailed division order title opinions. For more information, click here.

August 2025 (Volume 1, Edition 3)

In this edition of GableGotwals’ PFAS Pulse, we track the latest developments in per- and polyfluoroalkyl substances (“PFAS”) regulation and litigation. Key developments include:

• EPA announces rollback of portions of PFAS drinking water standards and extends compliance deadlines to 2031.
• Toxic Substances Control Act (“TSCA”) reporting for manufacturers/importers delayed to 2026-27.
• Litigation challenging PFAS regulations heats up under Trump Administration following Supreme Court limits on agency authority.
• New Jersey secures record $2B PFAS settlement, setting precedent for state enforcement and damages.
• EPA’s latest PFAS occurrence data shows significant detection rates and co-occurrence in public water systems.

By way of background, PFAS are a broad class of synthetic compounds defined by the exceptionally strong carbon-fluorine bond, which imparts heat resistance and surfactant properties that repel water, oil, and grease. These same qualities make PFAS persistent, highly mobile in soil and groundwater, and in some cases bioaccumulative and toxic, earning them the nickname “forever chemicals.” After more than a decade of groundwork, in 2024, EPA’s PFAS program marked a milestone by designating PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA” or “Superfund”) and adopting national drinking water standards for six PFAS under the Safe Drinking Water Act (“SDWA”).

In 2025, PFAS regulation remains a focus under the current Trump Administration and Administrator Zeldin’s EPA, however, regulatory momentum has slowed: SDWA compliance deadlines have been extended, several SDWA standards are slated for rescission, Toxic Substances Control Act (“TSCA”) reporting deadlines have been pushed back, and a new technical-assistance program has been announced to assist public water systems with addressing PFAS issues. Meanwhile, litigation over EPA’s SDWA and CERCLA PFAS rules unfolds in a post-Loper Bright landscape requiring clear congressional authority for major regulatory actions. While federal enforcement slows, states are ramping up pressure. New Jersey recently secured a record $2 billion settlement from PFAS manufacturers for state contamination. For clients, these developments highlight the importance of proactive PFAS risk identification and management across real estate portfolios, supply chains, manufacturing operations, product formulation, and waste management practices.

GableGotwals’ Environmental and Natural Resources team continues to partner with clients to anticipate regulatory shifts, evaluate compliance exposure, and develop legally sound, business-aligned strategies to ensure operational continuity while managing PFAS-related risks.

EPA Announces Partial Rollback of PFAS Drinking Water Standards

On May 14, 2025, EPA announced upcoming revisions to the National Primary Drinking Water Standards for PFAS under the SDWA. EPA stated it will retain the current maximum contaminant levels (“MCLs”) of four parts per trillion (“ppt”) for PFOA and PFOS but will extend the compliance deadline from 2029 to 2031. EPA also stated it will rescind the existing MCLs for PFHxS, PFNA, and HFPO-DA (“GenX”), as well as the Hazard Index (“HI”) for mixtures of those compounds with PFBS, and will reevaluate the regulatory determinations underpinning those standards. EPA plans to issue a proposal for these changes in Fall of 2025 and finalize them by Spring of 2026. This shift in position is consistent with EPA’s revised strategy in ongoing litigation challenging the rule, see below for litigation discussion. Note, these changes are pending formal rulemaking, and until EPA adopts a final rule, the original 2029 deadline under the 2024 rule remains effective.

TSCA PFAS Reporting Delayed Again

On May 13, 2025, EPA published an interim final rule (effective May 13, 2025) again revising the reporting timeline for manufacturers and importers of PFAS under Section 8(a)(7) of the Toxic Substances Control Act (“TSCA”). The new timeline delays the start of the data submission period to April 13, 2026, and the end date to October 13, 2026, with an extended deadline of April 13, 2027, for small manufacturers reporting exclusively as article importers. The underlying rule, finalized in October 2023, requires manufacturers (including importers) of PFAS in any year between 2011 and 2022 to submit specified data on volumes, exposure, environmental impacts, and health effects. EPA determined the delay is necessary to allow time for development of the reporting system and to complete review of public comments on possible substantive amendments to the rule. This adjustment provides EPA an opportunity to finalize any such modifications before the reporting window opens.

Litigation Challenging SDWA and CERCLA PFAS Regs: New EPA Strategy Post-Loper Bright

On July 22, 2025, the D.C. Circuit granted EPA’s motion to lift the stay in American Water Works Ass’n v. EPA, the consolidated challenge to EPA’s April 2024 SDWA National Primary Drinking Water Regulation for PFAS. That rule established MCLs for PFOA and PFOS individually and for PFHxS, PFNA, HFPO-DA (GenX), and certain mixtures collectively. The District of Columbia and 17 states filed an amicus brief supporting EPA, asserting that the standards comport with the SDWA’s health mandate and were lawfully promulgated. Petitioners, including major industry, manufacturing, and chemical trade groups, argue that EPA lacked statutory authority to adopt the PFAS MCLs and that its cost-benefit analysis was deficient, positions consistent with the Trump Administration’s narrower view of agency power. After obtaining multiple stays earlier in 2025 to review the rule, EPA announced in May it would retain the PFOA and PFOS MCLs but rescind standards for PFHxS, PFNA, GenX, and the hazard index for mixtures, positioning the Agency to defend a narrowed rule in the litigation. The parties have agreed to a September 10 deadline for EPA to declare its litigation posture and a September 17 deadline for proposing a revised briefing schedule.

By contrast, litigation over EPA’s May 2024 designation of PFOA and PFOS as “hazardous substances” under CERCLA in Chamber of Commerce, et al. v. EPA remains stayed through August 18, 2025, while EPA continues its rule review “within the broader context of EPA’s comprehensive strategy to address PFOA and PFOS.” The petitioners, led by the U.S. Chamber of Commerce, contend that EPA exceeded its statutory authority in adopting the designation. Both the SDWA and CERCLA PFAS rules now face heightened judicial scrutiny in light of recent Supreme Court precedents, including Loper Bright v. Raimondo (2024) and West Virginia v. EPA (2022), which curtail judicial deference to agency interpretations and limit agency action on matters of “major economic and political significance” absent express congressional authorization. These cases sit at the intersection of evolving PFAS policy and a shifting administrative law landscape.

Historic $2 Billion PFAS Settlement in New Jersey

In a record-setting environmental enforcement action, the State of New Jersey announced on August 4, 2025, a proposed settlement of up to $2 billion with DuPont, Chemours, and Corteva. This represents the largest environmental recovery ever secured by a U.S. state. The agreement resolves decades of alleged PFAS contamination tied to manufacturing operations across the state and establishes a long-term framework for both compensation and remediation. Under the deal, the companies will pay $875 million in damages over 25 years, apportioned among Chemours (50%), DuPont (35.5%), and Corteva (14.5%). In parallel, the settlement creates a $1.2 billion cleanup fund to address four heavily contaminated DuPont industrial sites: Chamber Works, Parlin, Pompton Lakes Works, and Repauno. It also earmarks $125 million in damages for natural resource injuries. Notably, DuPont will also acquire $150 million in insurance rights from Chemours to cover PFAS liabilities.

The settlement structure reflects a deliberate blend of financial security and enforcement leverage. A $475 million reserve fund is included to safeguard cleanup obligations if any party defaults or faces insolvency, ensuring that remediation does not stall. While the companies do not admit liability, the agreement’s scale and explicit site-specific commitments underscore the state’s aggressive posture on legacy PFAS pollution. The proposal now moves to a public comment period beginning in September, followed by court review, a procedural step that will formalize one of the most consequential state-level environmental settlements in U.S. history.

The New Jersey PFAS settlement marks a watershed moment in environmental enforcement, setting a high financial and legal precedent that will likely reverberate across other states grappling with similar legacy contamination. The sheer scale of nearly $2 billion in combined damages and cleanup funding underscores increasing state willingness to hold chemical manufacturers accountable for long-term PFAS harms, signaling aggressive, multi-decade remediation frameworks and substantial monetary recoveries are attainable. The detailed apportionment among Chemours, DuPont, and Corteva also illustrates nuanced liability allocation that other jurisdictions may adopt or challenge. Moreover, the inclusion of insurance rights transfers reflects sophisticated risk management strategies that states and defendants might negotiate moving forward. Collectively, this settlement sets a benchmark not only in financial terms but also in the scope and structure of remediation efforts, likely encouraging more states to pursue comprehensive PFAS litigation and settlements while shaping corporate approaches to legacy chemical liabilities nationwide.

Fifth Unregulated Contaminant Monitoring Rule PFAS Data Released:

In July 2025, EPA released the ninth dataset under the Fifth Unregulated Contaminant Monitoring Rule (“UCMR 5”) covering 29 PFAS and lithium in public water systems (“PWSs”) nationwide. Required by the SDWA every five years, UCMR monitoring collects occurrence data for unregulated contaminants to inform potential future regulations. UCMR 5, published in December 2021, has gathered sampling data since January 2023 from a nationally representative dataset from large, medium, and small PWSs. The current data release represents 83% of expected results and provides a detailed snapshot of contaminant prevalence in drinking water while comparing results to the enforceable Maximum Contaminant Levels (“MCLs”) established in EPA’s April 2024 PFAS drinking water rule.

Based on the partial results, an estimated 8.5% of PWSs have average concentrations above at least one PFAS MCL, with exceedance rates highest for large systems. PFOS and PFOA are the most frequent MCL exceedances, while other regulated PFAS, including HFPO-DA (“GenX”), PFHxS, and PFNA, exceed standards less often. The data also reveals PFAS co-occurrence, with 66% of locations that report at least one PFAS at or above the UCMR 5 minimum reporting level also showing multiple PFAS at or above those levels. Lithium results are also notable, with 27.1% of small PWSs (serving 10,000 or fewer people) and 23.9% of large PWSs (greater than 10,000) above EPA’s non-regulatory health reference level.

As discussed above, these findings arrive as EPA moves to extend the PFOA and PFOS compliance deadlines and rescind certain PFAS standards as part of the partial rollback of the April 2024 rule. While UCMR 5 data cannot alone determine compliance, utilities may use it to meet initial monitoring requirements, and the results are already shaping public health discussion and state enforcement strategies, see New Jersey’s $2B PFAS settlement, discussed above. With significant detection rates and regulatory requirements in flux, the UCMR 5 data offers an early but critical tool for shaping regulatory determinations, funding priorities, and risk management strategies.

Conclusion

As PFAS regulation and litigation continue to evolve amidst shifting federal policies and heightened judicial scrutiny, stakeholders must remain vigilant in monitoring these developments. The New Jersey settlement’s unprecedented scale and strategic design signal a new era of aggressive state-level enforcement and innovative risk management, underscoring how proactive, comprehensive PFAS risk assessment and mitigation are essential for navigating the complex legal and regulatory landscape ahead. The UCMR 5 data demonstrates the prevalence of certain PFAS in public water systems nationwide and signals that PFAS will continue to be a priority for drinking water regulation. For clients, aligning business operations with emerging PFAS standards and enforcement trends is critical for managing liability, ensuring compliance, and safeguarding long-term operational sustainability.

Thank you for reading this edition of PFAS Pulse. Feel free to reach out to GableGotwals’ Environmental and Natural Resources team with any questions.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Tyler A. Self
405-235-5589
tself@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

July 31, 2025 | By: Tim Sowecke, Win Colbert, and Tyler A. Self

Major developments in federal climate policy emerged this week from the U.S. Environmental Protection Agency (“EPA”). First, EPA Administrator Lee Zeldin proposed repealing the 2009 greenhouse gas (“GHG”) endangerment finding, the legal foundation for federal climate regulation of vehicles, power plants, and the oil and gas sector. Closely following the announcement, EPA published an interim final rule extending key compliance deadlines under the Clean Air Act’s (“CAA”) New Source Performance Standards (“NSPS”) Subparts OOOOb/c for the oil and gas industry. Together, these actions underscore a significant shift in federal climate regulation, with immediate implications for regulated sectors and long-term implications for federal climate strategy.

Repeal of EPA’s Greenhouse Gas Endangerment Finding

On July 29, 2025, Administrator Zeldin unveiled a proposed rule to repeal the agency’s landmark 2009 endangerment finding that GHGs “threaten public health and welfare,” along with all downstream vehicle emissions standards based on that finding. In its preamble, EPA offers three alternative legal rationales for repeal: (1) that Section 202(a) of the CAA never authorized climate‑driven standards; (2) that the original science “unreasonably analyzed” GHG harms; and (3) that no available vehicle technology can meaningfully curb global‑scale climate risks without imposing greater public health harms.

Administrator Zeldin announced this pivotal move at an auto dealership in Indiana, joined by U.S. Secretary of Energy Chris Wright, Indiana Governor Mike Braun, Indiana Attorney General Todd Rokita, U.S. Representative Jim Baird (R-IN-04), Indiana Secretary of Energy and Natural Resources Suzanne Jaworowski, and the Indiana Motor Truck Association. Following publication of the proposed rule in the Federal Register, EPA will accept public comments until September 21, 2025, with a final rule anticipated by the end of 2025.

Key Impacts on Power, Oil & Gas, and Utilities

Power-Sector Rules: The endangerment finding underpins CAA Section 111 standards for both new and existing power plants. Its removal would strip—or at least severely limit—the EPA’s legal foundation for future source-specific carbon limits (e.g., clean-energy performance standards), injecting regulatory uncertainty into long-term resource planning.

Oil & Gas Methane Controls: Current leak-detection and flaring restrictions hinge on GHG pollutant status. Repeal of the finding could delay or dismantle these federal requirements (e.g., New Source Performance Standards OOOOb/c). This would reduce near-term capital expenditure, but companies must still grapple with robust state-level rules, investor ESG mandates, and potential lawsuits asserting continued liability for methane emissions.

Utility Capital Planning: Many utilities embed GHG-reduction forecasts in budgets for renewables, storage, and grid hardening. A rollback may lower projected compliance costs and reshape Integrated Resource Planning (“IRP”), but could undermine access to low-cost, “green” financing and expose companies to reputational risk amid market-driven decarbonization.

The proposed rule marks a fundamental shift in EPA’s climate authority, potentially chilling federal climate action while amplifying the role of state regulation, markets, and private commitments. Stakeholders should track the rule’s progress, recalibrate compliance roadmaps, and weigh engagement in EPA’s rulemaking docket to protect interests.

Extension of NSPS Quad Ob/c Compliance Deadlines

On July 31, 2025, EPA published its interim final rule, effective immediately, extending certain compliance deadlines under the CAA’s NSPS Subparts OOOOb/c, applicable to new, modified, and reconstructed sources in the crude oil and natural gas sector.

The rule provides an 18-month extension for key requirements related to control devices, equipment leaks, storage vessels, process controllers, and covers/closed vent systems, including the requirement for continuous pilot flames on flares and enclosed combustion devices (“ECDs”) and corresponding alarm systems triggered by flame outages. For continuous monitoring of the “vent gas net heating value” (“NHV”) of flares and enclosed combustion control devices, the extended deadline is 120 days after publication.

It also delays by 18 months implementation of the Super-Emitter Program — the third-party methane detection and response program to identify large emission events from oil and gas facilities using remote sensing technologies. EPA cites the need to review the underlying technical data. During the extension, the agency will pause review of technology approval requests under the program.

In addition, the rule extends by 18 months the deadline for states to submit state implementation plans (“SIPs”) under Subpart OOOOc, moving the original March 9, 2026, deadline to September 2027.

EPA invoked the Administrative Procedure Act’s (“APA”) “good cause” exception to bypass notice-and-comment, citing urgent feasibility concerns raised by stakeholders regarding technology deployment and related compliance and enforcement concerns. We previously examined issues related to the use of the “good cause” exception in Fast-Tracking Deregulation: The Risks of Bypassing Notice and Comment (May 12, 2025), available here. Still, EPA is providing for post-promulgation comments, due by September 2, 2025, and challenges must be filed in the D.C. Circuit by September 29, 2025.

Conclusion and Takeaways

Taken together, EPA’s proposed repeal of the endangerment finding and its extension of NSPS compliance deadlines mark a profound shift in the federal climate regulatory landscape. By questioning the legal and scientific basis for regulating greenhouse gases, EPA is poised to narrow its own authority under the CAA. Stakeholders, particularly in regulated industries, should closely monitor these developments, as these changes will impact compliance planning, capital investment strategies, and risk management considerations.

GableGotwals attorneys Tim Sowecke, Win Colbert, and Tyler Self stand ready to assist clients in monitoring developments, crafting effective comments, and adapting compliance strategies. Our Environmental & Natural Resources Law and Administrative & Regulatory Law practice groups would welcome the opportunity to support your team through each phase of this evolving regulatory landscape.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Win Colbert
346-200-6439
wcolbert@gablelaw.com

Tyler A. Self
405-235-5589
tself@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.

June 23, 2025 | By: Tim Sowecke and Tyler A. Self

The Clean Air Act’s (CAA) New Source Performance Standards’ (NSPS) Subpart OOOOb applies to new, modified, and reconstructed oil and gas facilities as of December 6, 2022. It targets methane and volatile organic compound (VOC) emissions from operations such as well sites, centralized production facilities, compressor stations, and storage facilities. The rule officially took effect on May 7, 2024.

In March, EPA Administrator Zeldin announced plans to reconsider Subparts OOOOb (for new sources) and OOOOc (for existing sources), aligning with the Trump administration’s deregulatory posture and pro-fossil fuel policy direction. However, OOOOb remains in effect. The first annual reporting deadline is August 5, 2025, covering the compliance period from May 7, 2024, to May 7, 2025. The reporting template is available at EPA’s Compliance and Emissions Data Reporting Interface (CEDI).

Key OOOOb requirements include:

• Leak detection and repair. Frequent monitoring of fugitive emissions using Optical Gas Imaging (OGI) or Method 21 with repairs generally required within 30 days.
• Equipment standards. Enhanced control technologies for pneumatic controllers, pumps, and storage vessels.
• Associated gas flaring and venting. Prohibition on routine venting and flaring must meet combustion efficiency standards.
• Recordkeeping and reporting. Operators must document monitoring, repairs, and compliance status. Certain malfunctions or deviations may require prompt EPA notification. Annual reports must be submitted through CEDI.

Judicial Review Landscape

EPA’s approach to reviewing or rolling back Subpart OOOOb remains uncertain. Under the Clean Air Act, Section 307 provides a distinct procedural framework for revision, overriding the general rulemaking and judicial review of the Administrative Procedures Act (APA). Section 307 mandates detailed rulemaking procedures, including reasoned explanations, disclosure of advisory materials, and formal responses to significant public comments, and imposes strict limitations on judicial review. This section will be a lodestar for the Trump Administration’s deregulatory agenda regarding Subpart OOOOb.

Further, many of EPA’s other planned rollbacks, such as revising the National Ambient Air Quality Standards (NAAQS), the revision of NSPS for Oil & Gas facilities, and the National Emission Standards for Hazardous Air Pollutants (NESHAPs), are also subject to Section 307’s stringent requirements. Recent Supreme Court decisions in Oklahoma v. EPA and EPA v. Calumet Shreveport Refining, LLC underscore the importance of Section 307’s venue and procedural rules in shaping regulatory litigation.

In Oklahoma v. EPA, the Court held that EPA’s disapproval of state air quality plans (or SIPs) constituted regionally applicable actions subject to review in regional circuits—not the D.C. Circuit. The ruling preserves forum choice for states and regulated entities and emphasizes that challenges to disaggregated state actions must rely on fact-intensive records, not generalized policy arguments.

Conversely, in Calumet, the Court clarified that when EPA’s rationale reflects a uniform, nationwide policy, such as a categorical reinterpretation of a regulatory term, that action must be reviewed in the D.C. Circuit. The Court’s analysis emphasized that venue turns not merely on the geographic scope of an agency’s action, but also on whether the rationale applies uniformly across jurisdictions.

These rulings will have direct implications for any future revisions, or challenges, to Subpart OOOOb. The structure and rationale of EPA’s forthcoming rulemaking documents will be critical in their adoption or vacatur. If stakeholders seek to challenge these revisions, which is all but guaranteed, they must analyze whether the EPA grounds its changes in nationwide scope or state/region-specific findings. This will directly influence both litigation strategy and the available forum.

Navigating Forward

Regardless of impending changes to Subpart OOOOb, its reporting deadline looms large. While the legal status of the rule may evolve, its current enforceability remains intact. Given the Court’s recent emphasis on procedural posture, this moment of regulatory uncertainty calls for a clear strategy to ensure compliance plans are not only legally sound but operationally feasible.

For more information on Clean Air Act compliance and other environmental regulatory issues, please contact Tim Sowecke or Tyler Self. GableGotwals’ Administrative & Regulatory and Energy, Oil and Gas, and its Environmental and Natural Resources teams advise clients on regulatory compliance and enforcement.

Tim Sowecke
405-568-3308
tsowecke@gablelaw.com

Tyler A. Self
405-235-5589
tself@gablelaw.com

This article is provided for educational and informational purposes only and does not contain legal advice or create an attorney-client relationship. The information provided should not be taken as an indication of future legal results; any information provided should not be acted upon without consulting legal counsel.