Committee advances bill removing affirmative-defense language from Michigan Title V permits to comply with EPA

Franco Bozewski, legislative director for Representative Donovan McKinney, introduced House Bill 6122 as a compliance measure responding to a 2023 EPA directive that states remove affirmative-defense provisions from Title V (Part 70) operating permits. "The bill was requested by the Air Quality Division of EGLE," Bozewski said.

EGLE staff explained that an affirmative-defense provision formerly allowed a facility to present evidence that an unexpected emergency prevented compliance and thus avoid enforcement penalties in some circumstances. John Olson, an environmental quality analyst in EGLE's air quality division, told the committee that the provision is embedded in Michigan's title-5 permitting framework (cited in testimony as section 5527 of Act 451) but that in practice facilities have not used it. Olson said EPA's rulemaking recommends states remove the provision while enforcement discretion remains available to regulators.

Committee members asked how many facilities include the provision in their permits and what emissions volumes would be implicated; EGLE staff said they did not have a facility count on hand and that EPA and EGLE expect enforcement discretion to substitute for the removed provision. Olson warned that failing to act could risk federal sanctions or withdrawal of Michigan's Part 70 program approval under the Clean Air Act.

The committee voted to report House Bill 6122 with recommendation (recorded tally 6 yeas, 0 nays).