Compliance Under Title V: Yes, No, or I Don't Know?
By D.R. van der Vaart and John C. Evans, J.D.
INTRODUCTION
One of the sweeping changes introduced as part of the Federal Clean Air Act Amendments of 1990 was the establishment of a federal operating permits program. Prior to the establishment of this national program, the landscape of air quality regulations was similar to that of an uncompleted jigsaw puzzle. While most states had some version of an operating permit program, the requirements underlying most programs were scattered between federal and state standards, and included a hodgepodge of monitoring and record keeping requirements. The permits were not required to be comprehensive; they typically only identified the applicable regulations without regard to the demonstration of compliance. Indeed, even when the applicable rules were identified, compliance was seldom defined. Congress recognized that the regulated community and concerned citizens were too often frustrated when attempting to determine applicable Clean Air Act (“CAA”) obligations and whether the regulated community complied with these obligations. Further, there were concerns that this failure to comprehensively identify all requirements, including standards, monitoring, and record keeping, resulted in widespread non-compliance. Congress moved to address these concerns and established a new national operating permits program under Section 500 of the CAA, commonly referred to as “Title V.”
The goal of the Title V operating permits program was to define all CAA obligations in a single document. This document, the permit, was not only intended to restate the applicable requirements, but to clarify the facility's obligations under the CAA and, most importantly, to define compliance with those obligations. Congress recognized that this link between the Title V permit and compliance was critical and that without this link, the permit program would be little better than the existing state permitting programs.
Recent Environmental Protection Agency (“EPA”) action appears to frustrate the purpose of the Title V program. The promulgation of the Credible Evidence Rule, the change in compliance certification language under the Title V program, and recent EPA comments in reference to proposed Title V permits belie the fundamental tenants of this permitting program. A program that once held the promise of certainty for all parties now assumes the fragmented and litigious mosaic that frustrated State enforcement and third-party scrutiny. This paper examines congressional intent as well as the language of Title V and its confluence with the compliance and enforcement provisions of the 1990 amendments. It then tracks the EPA implementation of Title V from the promulgation of the Title V regulations in 1992 to the most recent attempts of states to implement the program.
One of the sweeping changes introduced as part of the Federal Clean Air Act Amendments of 1990 was the establishment of a federal operating permits program. Prior to the establishment of this national program, the landscape of air quality regulations was similar to that of an uncompleted jigsaw puzzle. While most states had some version of an operating permit program, the requirements underlying most programs were scattered between federal and state standards, and included a hodgepodge of monitoring and record keeping requirements. The permits were not required to be comprehensive; they typically only identified the applicable regulations without regard to the demonstration of compliance. Indeed, even when the applicable rules were identified, compliance was seldom defined. Congress recognized that the regulated community and concerned citizens were too often frustrated when attempting to determine applicable Clean Air Act (“CAA”) obligations and whether the regulated community complied with these obligations. Further, there were concerns that this failure to comprehensively identify all requirements, including standards, monitoring, and record keeping, resulted in widespread non-compliance. Congress moved to address these concerns and established a new national operating permits program under Section 500 of the CAA, commonly referred to as “Title V.”
The goal of the Title V operating permits program was to define all CAA obligations in a single document. This document, the permit, was not only intended to restate the applicable requirements, but to clarify the facility's obligations under the CAA and, most importantly, to define compliance with those obligations. Congress recognized that this link between the Title V permit and compliance was critical and that without this link, the permit program would be little better than the existing state permitting programs.
Recent Environmental Protection Agency (“EPA”) action appears to frustrate the purpose of the Title V program. The promulgation of the Credible Evidence Rule, the change in compliance certification language under the Title V program, and recent EPA comments in reference to proposed Title V permits belie the fundamental tenants of this permitting program. A program that once held the promise of certainty for all parties now assumes the fragmented and litigious mosaic that frustrated State enforcement and third-party scrutiny. This paper examines congressional intent as well as the language of Title V and its confluence with the compliance and enforcement provisions of the 1990 amendments. It then tracks the EPA implementation of Title V from the promulgation of the Title V regulations in 1992 to the most recent attempts of states to implement the program.