Our Insights

Title V Petitions and NSR: Where Is the Line?

January 30, 2019

By Whit Swift, Guest Writer
Bracewell, LLP

This article was originally published in Currents, POWER’s quarterly Environmental newsletter.

In 2018, the EPA Administrator issued several responses to petitions filed for Title V sources that are instructive in drawing a line with regard to whether and how the Title V process can be used to revisit past permitting decisions and possibly “re-open” pre-existing new source review (NSR) permit conditions.

The allure of prompting an EPA objection to a state Title V permit is the impact of that objection: unlike a comment received from EPA during the NSR permitting process, the permit (or permit record) must be changed to satisfy the EPA objection. If a permit has not yet been issued, the state permitting authority must address EPA’s objection before permit issuance. If the permit has already been issued, the EPA objection does not affect the permit’s validity, but the state permitting authority must reopen the permit to address EPA’s objection or risk having EPA take over as permitting authority for that particular permit.

The EPA Administrator held, consistent with past orders responding to Title V petitions, that the Title V process is not an opportunity to revisit a state authority’s past decisions regarding whether or not a project should have triggered federal NSR, or past best available control technology (BACT) determinations.

The Administrator did, however, grant a petition to object to a state Title V permit in an order that demonstrates how the Title V process can impact underlying NSR requirements. Under Title V, the permitting authority must ensure that Title V permits contain monitoring requirements sufficient to yield data that is representative of the source’s operation. In response to a petition that identified, with specificity, a scenario where EPA found no evidence in the permit record of the monitoring, recordkeeping, or reporting requirements that assure compliance with an emission limit from an incorporated NSR permit, the EPA has granted a petitioner’s request for an objection. The EPA Administrator’s order directed the state permitting authority to specify the relevant monitoring, recordkeeping, or reporting, or alternatively to change the underlying permit to incorporate requirements adequate to assure compliance with emission limits.

At the same time, the EPA Administrator declined to object to a Title V permit based on conclusory and unsupported statements about a particular permit condition not being sufficiently enforceable. While a vague challenge claiming unenforceable NSR permit requirements is unlikely to get any traction with EPA, experience in 2018 demonstrates that, even under an administration committed to cooperative federalism, the Title V process can be used to impact NSR permit requirements.

Given the potential for an objection from EPA in response to a successful petition or public comment—particularly one that could arise during a permit revision proceeding where the timing of permit issuance is important—it may be beneficial for permit holders to evaluate the monitoring, recordkeeping, and reporting requirements found in their underlying NSR permits to determine if the site is vulnerable to a similar objection. If that is the case, a proactive approach aimed at filling any such gaps before they become a target for public comments could benefit the permit holder and help ensure that such an objection does not arise at an inopportune time.

Copies of the EPA Administrator’s orders referenced in this article, and other orders issued in response to Title V petitions, can be found on the EPA’s website.

About the Author:

Whit Swift advises industrial companies on air quality matters, such as state and federal new source review permitting and Title V operating permit matters. In connection with that permitting work, he has represented applicants in contested permit matters before the Texas Commission on Environmental Quality (TCEQ) and the Texas State Office of Administrative Hearings (SOAH).

In addition to permitting work, Whit assists major manufacturing, energy, chemical and petrochemical companies with compliance issues related to the Clean Air Act (CAA). His CAA compliance work includes auditing, compliance counseling, and enforcement defense work under state and federal programs, including the federal Risk Management Plan (RMP) program, federal regulatory requirements governing sources of hazardous air pollutants (National Emissions Standards for Hazardous Air Pollutants (NESHAP), release reporting, and State Implementation Plan (SIP) rules regulating point sources.