EPA Deference to States in Permit Objection Response

April 27, 2018Newsletters
The AIR QUALITY Letter: April 2018

EPA Deference to States in Permit Objection Response

Administrator Pruitt has shown an increasing willingness to defer to the state in the issuance of a Title V operating permit under the Clean Air Act. Title V operating permits are “umbrella” permits that include all Clean Air Act mandates that apply to a source. States and local permitting agencies must submit proposed Title V operating permits to EPA for review. EPA then has 45 days to object to the issuance of a proposed permit if it determines the permit does not comply with the Clean Air Act’s requirements. If EPA does not object then any person may petition the EPA administrator, within 60 days of the expiration of the 45-day EPA review period, to object to the permit.

Since then, EPA has continued to defer to state Title V operating permit decisions by denying petitions from environmental groups challenging these permit decisions. Since January 1, 2018, EPA has denied seven petitions from environmental groups challenging Title V permits issued by Maryland, Tennessee, Arkansas, Wisconsin, Texas and Pennsylvania. In each case, the environmental group made several arguments for why the permit was missing required conditions and/or why the permit conditions were inadequate and the EPA has rejected each argument. Many of the arguments have related to why the Title V operating permit lacks required testing and monitoring conditions.

However, EPA is not simply rubber-stamping Title V operating permits and denying all petitions. On April 2, 2018, EPA granted in part and denied in part a petition from the Environmental Integrity Project, the Sierra Club and Air Alliance Houston challenging the Texas Commission on Environmental Quality’s Title V proposed operating permit for the ExxonMobil Corporation’s Baytown Refinery. The EPA granted the petition on one ground: the permit did not include or incorporate all requirements applicable to the facility because it did not have direct references to certain source-specific requirements derived from registered Permits by Rule.