Environmental Permitting, Regulatory Developments

Title V Permitting Petitions Get a New Look

Noting that the Clean Air Act’s (CAA) petition process for Title V permits will benefit from additional clarity and transparency, the EPA has issued a final rule that establishes three new provisions for petitions.

The first provision allows and encourages petitioners to submit their petitions electronically to the Agency; paper submissions are also allowed. The second provision establishes specific content and format requirements for petitions. The third requires permitting authorities, primarily states authorized to issue Title V permits, to prepare a written response to all significant public comments on the draft permit and send this document to the EPA for inclusion in the federal record for the permit.

Consolidated Permitting

Title V (Sections 501–507 of the CAA and codified at 40 CFR Part 70) established an operating permits program for major sources of air pollutants, as well as certain other sources. A Title V permit is a comprehensive document that identifies all the specific CAA requirements that must be met by a source to operate. Generally, the permit lists all enforceable emissions limits and standards, including operational requirements and limitations, and other conditions to ensure compliance with all applicable requirements that apply to the source at the time of permit issuance, as well as the monitoring, recordkeeping, and reporting requirements. Title V permits typically do not impose new pollution control requirements on sources.

Most states and certain local agencies have approved Part 70 programs—that is, they are authorized to issue Title V permits. Proposed permits take effect if the EPA does not object to them during a 45-day review period. Once this 45-day period ends, the Title V program provides a 60-day window in which any person may object to the proposed permit in a petition submitted to the Agency.

Historically, the EPA took the position that the petition process is a valuable backup to Agency reviews.

“As the EPA explained in proposing the initial Title V regulations, the Title V petition opportunity serves an important purpose because Title V permits are frequently complex documents, and given the brevity of the Agency review period, there may be occasions when the EPA does not recognize that certain permit provisions are not in compliance with applicable requirements of the Act,” the EPA has stated.

Electronic Submittal

Under the final rule, any petition regarding a Title V draft permit must be submitted through the Operating Permits Group in the Air Quality Policy Division in the Office of Air Quality Planning and Standards using one of three methods:

  • An electronic submission through the EPA’s designated submission system. The rule states that electronic submittal is the Agency’s “preferred method.”
  • An electronic submission through the EPA’s designated e-mail address listed on the above website
  • A paper submission to the EPA’s designated physical address listed on the above website.
  • Any necessary attachments must be submitted together with the petition using the same method as for the petition.

Content and Format

The content requirements include:

  • Identification of the proposed permit on which the petition is based.
  • Identification of any issue as grounds for an objection based on a claim that the permit, permit record, or permit process is not in compliance with the applicable CAA or Part 70 requirements.
  • An explanation of how the term or condition in the proposed permit, or relevant portion of the permit record or permit process, is not adequate to comply with the corresponding applicable requirement under the CAA or Part 70.
  • Identification of where the issue in the claim was raised with reasonable specificity during the public comment period for the draft permit. If the grounds for the objection were not raised during the public comment period, the petitioner must demonstrate that it was impracticable to raise such objections within that period unless they arose after such a period.

Regarding format, the petition should be organized in the same order in which the content requirements are listed in the final rule.

Response to Comments

Permitting authorities will be required to respond in writing to significant commentsreceived during the public participation process for a draft Title V permit. Such responses can be (and often are) prepared and collected together in one response-to-comments document, which can be made available to the public in various ways, such as by posting on the permitting authority’s website.

“Significant comments in this context include, but are not limited to, comments that concern whether the Title V permit includes terms and conditions addressing federal applicable requirements and requirements under Part 70, including adequate monitoring and related recordkeeping and reporting requirements,” states the EPA.

Comment on Proposal

The EPA proposed the revisions in August 2016, which means it has taken the Agency 3 ½ years to promulgate a final rule. One reason for the long delay may be substantial objections to the proposal lodged by a consortium of environmental groups. These commenters stated:

“We are disappointed that EPA failed to propose significant changes aimed at improving the Agency’s wholly inadequate oversight of state-run Title V programs. We are also disappointed by and oppose EPA’s proposal to establish rigid mandatory content and format requirements for public petitions. These requirements will do little to make EPA’s workload more manageable while making it more difficult for those living in the underprivileged and overburdened communities most directly affected by air pollution from major sources to demand the public health protections the Clean Air Act guarantees.”

The final revisions for Title V petitions are effective April 6, 2020.