MEMORANDUM
SUBJECT: Developing Approvable State Enabling Legislation
Required to Implement Title V
FROM: John S. Seitz, Director
Office of Air Quality Planning and Standards (MD-10)
TO: Air Division Director, Regions I-X
Title V of the Clean Air Act Amendments of 1990 requires
that by November 15, 1993, each State submit to the Environmental
Protection Agency (EPA) for approval an operating permits program
that meets the requirements of title V and EPA's implementing
regulations (40 CFR part 70). Although virtually all States have
initiated revisions to their legislative authority to implement
title V, it appears that a majority of States will need to seek
at least some additional authority in their 1993 legislative
sessions. The purpose of this memorandum and its attachments is
to assist the Regions in identifying legislative authority issues
by focussing on selected issues which have presented the most
difficult and most frequent problems to the States in developing
State legislation. The first attachment to this memorandum
highlights these deficiencies. The second attachment, which is
based on a checklist developed by an accomplished local air
agency director, David Jordan of the Indianapolis Air Pollution
Control Agency, provides an overview of the range of activities
which a permitting authority must perform in order to implement
title V. Permitting authorities may find it useful to review
this list to determine whether their existing authority enables
them to perform the listed functions.
This memorandum and its attachments supplement the guidance
to States issued by former Assistant Administrator Rosenberg on
May 21, 1991 which provided an initial "checklist" of the
authorities necessary to implement title V. While the initial
guidance was developed in conjunction with the May 10, 1991
proposed rule (which was substantially revised prior to
promulgation), the guidance issued today is based on the final
regulation.
Recognizing that it is not necessary for a State's enabling
legislation to list in detail the authorities required to
implement title V, EPA has encouraged States to develop
legislation which grants general authority and to address
implementation issues in a more detailed manner through State
rulemaking. Although a "checklist" is valuable in analyzing the
legislative authority of a State, it is sometimes more useful to
first consider whether the existing (including newly enacted)
legislation in general conveys sufficient authority to implement
the requirements of title V. If so, no further legislation may
be needed, although it is also necessary to review other parts of
the air program legislation and other State laws (e.g., State
administrative procedure act, public records laws) to confirm
that there are no inappropriate restrictions on the authority
granted to the air program. This approach provides States
flexibility in adapting their current programs to the
requirements of part 70 in a way that is responsive to particular
State needs and policy choices, avoids unnecessarily consuming
legislative resources to debate detailed proposals, and avoids
the need to revise State legislation if certain details of EPA's
rules are overturned in litigation.
States which anticipate difficulty in complying with the
November 15, 1993 deadline for program submittals should contact
the appropriate Regional Office. Continued State-EPA teamwork
will be critical in the timely development of State operating
permits programs. This is especially important not only because
of the fundamental role that title V plays in implementing air
quality programs, but also because sanctions are mandated by the
Clean Air Act for failure to develop these programs. These
sanctions can involve both the loss of Federal highway funding
for the entire State and a minimum two-to-one offset ratio for
emissions from newly constructed or modified sources in certain
nonattainment areas.
For further information, call Kirt Cox at (919) 541-5399 or
Candace Carraway at (919) 541-3189.
Attachments
cc: Air Branch Chief, Regions I-X
Regional Counsel, Regions I-X
Attachment 1
CHECKLIST FOR DEVELOPING APPROVABLE
STATE ENABLING LEGISLATION
This checklist identifies the most frequently encountered
and troublesome deficiencies in State legislative authority to
implement title V of the Clean Air Act (Act). A more extensive
list of authorities is provided in the attachment entitled
"Checklist for Authority to Implement Part 70."
This checklist is organized into five major headings:
program coverage; permit terms and conditions; procedures for
permit issuance, renewal, reopenings, and revisions; fees; and
enforcement. The discussion of each issue within these headings
begins with a statement of the authority which is required by
title V and/or the part 70 regulations. Sections of the Act are
referenced by the word "section" followed by a three-digit
number, e.g., section 112. Sections of the regulations are
preceded by a section symbol, e.g., 70.1.
For each issue, deficiencies or problem areas are
identified. The deficiencies/problem areas are divided into 1)
problems which would cause a State program submittal to be
disapproved, and 2) problems which do not have to be resolved
prior to initial program submittal but which would lead to the
withdrawal of program approval if not resolved. Because some of
the downstream problem areas will become important soon after
State programs are approved, States are encouraged to resolve
these problems prior to program submittal.
I. PROGRAM COVERAGE
A. Major Sources
Approvable permits programs must have authority to cover
major sources, defined to include:
1. Major stationary sources of hazardous air pollutants, as
defined in section 112(a) of the Act. These are sources with the
potential to emit 10 tons per year (tpy) of any hazardous air
pollutant or 25 tpy of any combination of hazardous air
pollutants or a lesser quantity of a given pollutant as specified
in future Environmental Protection Agency (EPA) rulemaking. For
radionuclides, EPA will promulgate a separate rule which specifies different criteria for defining "major source." [Note
that these requirements will necessitate statutory revisions
immediately after the promulgation of a lesser quantity cutoff if
the State does not have sufficiently broad enabling legislation.]
2. Major stationary sources as defined in section 302,
which are sources with the potential to emit 100 tpy of any air
pollutant.
3. Sources in nonattainment areas which are major
stationary sources as defined in title I, part D.
[See section 502(a); 70.2, 70.3(a).]
Problem Areas for Program Approval
Statutory limitation on the pollutants which can be
regulated (such as a specific list of pollutants) that
is narrower than pollutants which must be covered under
part 70.
State implementation plan (SIP) and/or new source
review (NSR) definitions of "major source" that have
not been updated to reflect the new, varied thresholds
for major sources and are incorporated by reference
into the operating permits program.
Exemption from permitting requirements of specific
types or sizes of machinery/emission units which either
come within the definition of major source or are
components of major sources.
Exemption of source categories subject to or soon
likely to become subject to, permitting requirements
(e.g., a few States have exemptions for agricultural
sources and for sources constructed before a certain
date).
B. Noncomplying Sources
Approvable permits programs must have authority to issue
permits to sources not in compliance with applicable
requirements, and permits must include compliance schedules which
will bring sources into compliance [see section 502(b)(5)(A),
section 504(a); 70.6(c)(3)].
Problem Area for Program Approval
Prohibitions on permitting sources which are not in
compliance with applicable requirements.
C. Other Sources
Approvable permits programs must have authority to cover the
following types of sources regardless of size:
1. Acid rain: affected sources under the acid deposition
provisions of title IV. [These sources may not be exempted from
permitting even if nonmajor.]
2. Sources within categories designated by EPA subsequent
to notice and comment rulemaking. [This requirement provides
another reason to enact broadly worded enabling legislation.]
In addition, approvable permits programs must have the
authority to cover the following types of nonmajor sources unless
exempted from permitting requirements by EPA rulemaking:
3. National Emission Standards for Hazardous Air Pollutants
(NESHAP): sources subject to a hazardous air pollutant standard
or other requirement under section 112 [except a source would not
be required to obtain a permit solely on the basis of being
subject to section 112(r)].
4. New Source Performance Standards (NSPS): sources
subject to a NSPS or other requirement under section 111.
Sources subject to preconstruction review pursuant to the
PSD program under title I, part C, or the nonattainment area NSR
program under title I, part D are generally major sources which
must obtain part 70 permits. Some States may elect to bring
nonmajor sources into their federally-approved PSD/NSR programs.
The EPA will issue guidance on whether such sources must be
issued part 70 permits.
[See section 502(a); 70.3(a).]
Problem Areas Which May Result in Withdrawal of
Program Approval
Exemption of specific types or sizes of
machinery/emission units which applies to nonmajor
sources which become subject to permitting requirements
subsequent to program approval.
Exemption of source categories which applies to
nonmajor sources which become subject to permitting
requirements subsequent to program approval (e.g., a
few States have exemptions for agricultural sources).
Lack of authority to issue permits to nonmajor sources.
Exemption of all nonmajor source categories on a
permanent basis.
II. PERMIT TERMS AND CONDITIONS
A. Incorporating All Applicable Requirements
Permits must incorporate terms and conditions to assure
compliance with all applicable requirements under the Act,
including the SIP, title VI, sections 111 and 112, the sulfur
dioxide allowance system and NOx limits under the acid rain
program, emission limits applicable to the source, monitoring,
recordkeeping and reporting requirements, and any other
federally-recognized requirements applicable to the source
[see section 504(a); 70.2, 70.6(a)].
Problem Areas for Program Approval
Lack of authority to incorporate into permits the
requirements of a federally-promulgated implementation
plan.
Lack of authority to promptly implement new Federal
requirements.
Lack of authority to incorporate future effective
requirements into permits.
B. Compliance Provisions
Approvable programs must require that all part 70 permits
contain inspection, entry, compliance certification, testing,
monitoring, reporting, and recordkeeping requirements sufficient
to assure compliance with the terms and conditions of the permit
[see section 504(c); 70.6(c)]. Where the applicable
requirement does not require periodic testing or instrumental or
noninstrumental monitoring, the permit must require periodic
monitoring sufficient to yield reliable data representative of
the source's compliance with the permit [see 70.6(a)(3)(i)].
Approvable programs must have the authority to require enhanced
monitoring and submissions of compliance certifications,
including the completion of annual compliance certifications and
specification of the compliance method to be used as the basis
for the certification [see section 114(a)].
Problem Areas for Program Approval
Lack of authority to issue permits granting the
permitting authority access to, and authority to
inspect, regulated activities and required records.
Lack of authority to incorporate into permits
monitoring, recordkeeping and reporting requirements as
required by part 70, such as requirements for annual
compliance certifications, retention of
monitoring/testing records for 5-year period, or
semiannual progress reports consistent with the
source's schedule of compliance.
Lack of authority to impose (through permitting)
compliance requirements which require periodic
monitoring or testing.
Lack of authority to impose (through permitting)
compliance requirements which incorporate averaging
times (where required).
Prohibition of the use of periodic monitoring or
testing data in compliance certifications and for
enforcement purposes.
Prohibition of the use of enhanced monitoring data for
compliance purposes for direct enforcement.
C. Permit Terms Which Last No More Than 5 Years
States must have authority to issue permits for a fixed
term, not to exceed 5 years (except that municipal waste
combustors may be issued permits for a period not to exceed 12
years) [see section 502(b)(5)(B), section 129(e); 70.6(a)(2)].
Problem Area for Program Approval
Requirements that permits have terms in excess of 5
years.
III. PROCEDURES FOR PERMITS ISSUANCE, RENEWAL, REOPENINGS,
AND REVISIONS
A. Public Participation
Approvable programs must provide adequate procedures for
public participation for initial permit issuance, significant
modifications, and renewals including offering an opportunity
for public comment and a hearing on draft permits [see
section 502(b)(6); 70.7(a)(1)(ii), 70.7(h)].
Problem Areas for Program Approval
Lack of authority for public notice concerning initial
permit issuance, significant modifications, and
renewals.
Restrictions on the persons who are allowed to submit
comments on draft permits.
Restrictions on the types of permits for which public
comment or the opportunity to request a hearing is
provided (e.g., allowing comments solely during permit
proceedings which involve new construction or toxics
sources).
Restrictions on the public availability of permit
applications, compliance plans, permits, and monitoring
or compliance reports [except for information entitled
to confidential treatment under section 114(c) of the
Act].
Problem Area Which May Result in Withdrawal of
Program Approval
No provisions for public participation in permit
proceedings which involve nonmajor sources (which may
become subject to permitting requirements subsequent to
program approval).
B. Default Issuance
Approvable programs must not allow permits to be issued by
default when the program fails to take action on the application
within applicable time limits [see 70.8(e)].
Problem Area for Program Approval
Legislation which provides that a permit shall be
issued automatically if the permitting authority does
not take timely action on an application. [Such
provisions may be found within the State administrative
procedure act as well as within statutes governing the
air program.]
C. Lapsing Permits
Approvable permits programs must have authority to enforce
terms and conditions of a permit which has expired so as to
assure compliance with all applicable requirements (provided
there has been a timely and complete application for renewal)
[see section 502(b)(5)(A); 70.4(b)(10)].
Problem Area for Program Approval
Provisions which render the conditions of a permit not
applicable to the source after the expiration of the
permit term.
D. Reopening of Permits
Approvable permits programs must have authority to revise
all permits for major sources with remaining terms of 3 or more
years to incorporate applicable requirements under the Act which
are promulgated after issuance of the permit. Revision must be
made within 18 months after promulgation, but revision is not
required if the effective date of the requirement is after the
expiration of the permit term. The State must be able to reopen
permits when additional acid rain requirements become applicable.
Approvable programs must also provide that the permitting
authority may revoke and reissue permits for cause (such as for
material errors in the permit) [see section 502(b)(9) and section
502(b)(5)(D); 70.7(f), 70.4(b)(3)(vi)].
Problem Area for Program Approval
Lack of authority to reopen permits prior to renewal.
E. Judicial Review
States must provide an opportunity for judicial review of
final permit actions in State court to the source, anyone who
participated in the public comment process, and any other person
who could obtain judicial review under applicable State law [see
section 502(b)(6); 70.4(b)(3)(x)]. The EPA expects that
reasonable standing restrictions may apply in actions to review
permit actions in State courts, if the standing requirements are
no more restrictive than those applicable under Article III of
the U.S. Constitution.
The opportunity for judicial review in State court must be
the exclusive means for challenging a State final permit action,
and these challenges must be filed with the court within 90 days
(or such shorter time as the permitting authority may require)
after the final action or within 90 days (or such shorter period
designated by the State) after new grounds for challenge arise
[see 70.4(b)(3)(xii)].
Problem Areas for Program Approval
Legislation that provides a cause of action to a class
of persons that does not include all those persons who
meet Article III's threshold standing requirements
(e.g., limiting standing to those persons who actually
appeared and testified at a public hearing held on a
permit).
Limitations on parties entitled to submit comments
during the public comment period.
Failure to provide for judicial review to the applicant
or the public when there is a failure to take timely
action on an application (which must be considered a
final permit action subject to judicial review).
Failure to provide that the sole means for challenging
a State final permit action shall be an action filed in
State court within 90 days of the final permit action
or when new grounds for challenge arise (or a shorter
time as designated by the State).
Problem Area Which May Result in Withdrawal of
Program Approval
Failure to provide that EPA may intervene in all
administrative appeals involving Phase II acid rain
permits.
F. EPA Veto
Permits may not be issued over timely EPA objection
[see section 502(b)(5)(F); 70.4(b)(3)(ix)].
Problem Area for Program Approval
Lack of authority to deny issuance of permits based on
EPA objection.
G. Operational Flexibility
States must have authority to issue permits which allow
changes within a permitted facility without requiring a permit
revision if the changes are not modifications under any provision
of title I, and the changes do not exceed the emissions allowable
under the permit, provided the source provides at least 7 days
notice to the State (unless the State sets a lesser time for
emergencies) [see section 502(b)(10); 70.4(b)(12)].
Problem Areas for Program Approval
Lack of authority to allow "section 502(b)(10) changes"
as defined in 70.2 which contravene permit terms
(without requiring modification) provided the changes
are not modifications under title I and changes do not
exceed the emissions allowable under the permit as
required by 70.4(b)(12)(i).
Lack of authority to provide for enforceable emissions
trading under an emissions cap in the permit as
required by 70.4(b)(12)(iii).
IV. FEES
A. Program Support Requirement
Approvable permits programs must collect revenue from permit
fees sufficient to cover all direct and indirect costs required
to develop, administer, and enforce the permits program
[see section 502(b)(3)(A); 70.9(b)(1)]. A State program which
collects an amount equal to or greater than the $25 per tpy
statutory presumptive minimum program costs (adjusted to reflect
Consumer Price Index increases) will be approvable unless serious
questions are raised as to the adequacy of the fee revenues to
cover program costs [see section 502(b)(3)(B); 70.9(b)(2)].
Problem Areas for Program Approval
Lack of authority to collect permit fees.
Legislative cap limiting permit fees to a level which
is inadequate to fund the permits program.
Legislative requirement to defray permits program costs
with revenue from a source other than permit fees
imposed on part 70 sources (e.g., license tag fees,
legislative appropriations).
Problem Areas Which May Result in Withdrawal of
Program Approval
Legislative cap on permit fees which may require
further legislative action to adjust the fee amount to
reflect changes in program costs.
Legislative ceilings on staffing levels or budgets.
B. Use of Fee Revenues
Fees required to be collected in order to support direct and
indirect permits program costs must be spent solely on permits
program [see section 502(b)(3)(C)(iii); 70.9(a)].
Problem Area for Program Approval
Failure to assure that the air agency will get the
benefit of permit fees to support the direct and
indirect costs of the permits program.
V. ENFORCEMENT
A. Civil Enforcement
States must have civil authority to enforce any applicable
requirement, permit terms and conditions, permit fees, any duty
to allow or carry out inspection or monitoring activities, any
regulation or order issued by the State, and the requirement to
obtain a permit, including authority to recover civil penalties
in a maximum amount of not less than $10,000 per day per
violation [see section 502(b)(5)(E); 70.11(a)(3)(i)]. States
must have injunctive authority to restrain activity in violation
of a permit and activity which presents an imminent and
substantial endangerment to the public health or welfare or the
environment [see 70.11(a)(1) and (2)].
Problem Areas for Program Approval
Maximum penalties under State law are inadequate.
No provision for imposing penalties on a per-day per-
violation basis when violation is continuing.
State law includes mental state as an element of proof
for civil violations.
Lack of injunctive authority to restrain activity in
violation of a permit.
Lack of authority to restrain or enjoin immediately, by
order or by suit in court, activity that presents an
imminent and substantial endangerment to the public
health or welfare or the environment.
Limits on fines for monitoring or reporting violations
below the $10,000 minimum.
B. Criminal Sanctions
States must have authority to impose criminal fines against
persons who knowingly violate any applicable requirement, any
permit condition or any fee or filing requirement, or who
knowingly make false material statements, representations or
certifications in any form in any notice or report required by a
permit, or who knowingly render inaccurate any monitoring device
or method required to be maintained by the permitting authority.
The maximum fine must be no less than $10,000 per day per
violation [see section 502(b)(5)(E); 70.11(a)(3)(ii) and
(iii)].
Problem Areas for Program Approval
Maximum fines under State law are inadequate.
Mental state required for establishing criminal
violations is greater than Federal requirement (e.g.,
State statute requires intent to violate an applicable
requirement).
No provision for imposing fines on a per-day per-
violation basis when violation is continuing.
C. Affirmative Defense for Emergencies
Other than allowing affirmative defenses provided for in
applicable requirements (such as NSPS "emergency" provisions),
States may not allow an affirmative defense to enforcement
actions which is less stringent than that provided for in
70.6(g) which allows an affirmative defense based on emergency
in actions brought for noncompliance with technology-based
emission limitations.
Problem Areas for Program Approval
Affirmative defense (which is independent of any
applicable requirement) is allowed in actions brought
for noncompliance with health-based emissions
limitations.
Affirmative defense (which is independent of any
applicable requirement) based on emergency operates as
a bar to bringing an enforcement action.
Attachment 2
CHECKLIST FOR AUTHORITY TO IMPLEMENT PART 70
The core activities required of State operating permits
programs by title V and 40 CFR part 70 are outlined below. To
supplement their understanding of the requirements of title V and
40 CFR part 70, permitting authorities may find it useful to
review this list to determine whether their existing authority
enables them to perform the listed functions.
In contrast to the "Checklist for Developing Approvable
State Enabling Legislation," this checklist includes many
authorities which nearly all States already possess and does not
distinguish between authority which must be in place in order to
obtain program approval and those authorities which States may
later be required to possess. By offering different approaches
to the issue of enabling authority, these checklists are designed
to complement one another.
PROGRAM COVERAGE AUTHORITY
To require permits for major sources, acid rain sources,
municipal waste incinerators [see 70.3(a) and (b)].
To issue permits to sources in violation of applicable
requirements [see 70.1(b)].
To address, in permit applications and permits, "regulated
air pollutants" (including Class I and Class II ozone
depleting substances as defined in title VI and
radionuclides) and pollutants for which the source
is major [including pollutants listed in section 112(b)],
[see 70.2 "regulated air pollutant" definition,
70.5(c)(3)(i)].
AIR TOXICS AUTHORITY
To determine case-by-case maximum achievable control
technology (MACT) under section 112(g) and incorporate
MACT into new source permits [see 70.6(a)(1)].
To implement Environmental Protection Agency (EPA)
established MACT for individual sources
and incorporate the resulting requirements into permits
[see 70.6(a)(1)].
To determine MACT under section 112(j) and incorporate it
into permits if EPA misses statutory deadline for
determining MACT [see 70.6(a)(1)].
To implement the early reductions program and issue early
reduction permits within 9 months of receipt of complete
application [see 70.4(b)(11)(iii)].
To require submission of accidental release plans under
section 112(r) [see 70.6(a)].
ACID RAIN AUTHORITY
To issue acid rain permits with a term of
no more and no less than 5 years [see 70.6(a)(2)].
To prohibit emissions which exceed the sulfur
dioxide allowances which are held by a source
[see 70.6(a)(4)].
To ensure that the acid rain program requirements
will not be modified by the permitting authority
[see 70.4(b)(3)(xiii)].
PERMIT TERMS AND CONDITIONS AUTHORITY
To require permitted sources to comply with monitoring,
recordkeeping, reporting, and compliance certification
requirements [see 70.4(b)(3)(ii)].
To incorporate into the permit enforceable periodic
monitoring or testing requirements (gap-fillers) where
the SIP or other applicable requirement does not
contain such a requirement [see 70.6(a)(3)(i)(B)].
To reopen and revise permits to incorporate applicable
requirements which become applicable to major sources which
have remaining permit terms of 3 or more years [see
70.7(f)(1)(i)].
To incorporate Federal implementation plan provisions
into permits [see 70.4(b)(3)(v)].
To include severability clause in permits (i.e., clauses
that ensure the continued validity of the various permit
requirements in the event of a challenge to any portions of
the permit) [see 70.6(a)(5)].
OPERATIONAL FLEXIBILITY AUTHORITY
To incorporate alternative operating scenarios in permits
[see 70.6(a)(9)].
To allow "section 502(b)(10) changes" which contravene
permit terms (without requiring modification) provided
the changes are not modifications under title I and
changes do not exceed the emissions allowable under the
permit [see 70.4(b)(12)(i)].
To allow trading among emissions units solely for the
purpose of complying with a federally-enforceable emissions
cap that is established in the permit, independent of
otherwise applicable requirements (without requiring
modification) [see 70.4(b)(12)(iii)].
To adopt streamlined permit modification procedures
[see 70.4(b)(13)].
To prohibit off-permit changes in conflict with title IV,
or where such changes are modifications under title I, if
off-permit changes are allowed [see 70.4(b)(15)]. [Note
that there may be an alternative approach for section 112(g)
changes.]
PERMIT ISSUANCE, RENEWAL, REOPENINGS AND REVISIONS AUTHORITY
To require sources to submit permit applications
within 12 months (or some earlier time period) after
the source becomes subject to the permits program
[see 70.5(a)(1)].
To issue renewable operating permits (permits
must be renewable every 5 years or less)
[see 70.4(b)(3)(iii)].
To give priority to taking action on applications for
construction or modification under title I, parts C and D
[see 70.7(a)(3)].
To terminate, modify, or revoke and reissue operating
permits for cause [see 70.4(b)(3)(vi) and
70.7(f)(1)].
To refrain from issuing a permit if EPA objects to its
issuance [see 70.4(b)(3)(ix), 70.8(c) and (d)].
To require permit renewal applications at least 6
but no longer than 18 months prior to permit expiration
[see 70.5(a)(1)(iii)].
To prevent the default issuance of permits (e.g., if a State
fails to act) [see 70.8(e)].
To determine application completeness within 60 days and
deem the application complete if no action is taken within
60 days [see 70.5 (a)(2)].
To provide sources with the application shield
when a complete and timely application is filed
[see 70.7(b)].
To require the same procedures for permit renewal and permit
reopenings as for issuance of initial operating permits
[see 70.7(c)(1)(i)].
To require that permit expiration terminates a source's
right to operate (except as provided by application shield
provisions) [see 70.7(c)(1)(ii)].
FEES AUTHORITY
To charge and collect fees sufficient to fund all direct and
indirect costs of the permits program [see 70.9(a)].
To ensure that permits program costs of State and local
programs are covered solely by permit fees imposed on
part 70 sources [see 70.9(d)].
To take enforcement actions for failure to pay applicable
fees [see 70.4(b)(3)(vii)].
NOTICE/JUDICIAL REVIEW AUTHORITY
To provide 30-day public notice and the opportunity for
public hearing and comment (with 30-day notice for public
hearings) for all permit applications, significant
modifications, and renewals [see 70.7(h)].
To make permit applications, compliance plans, permits and
monitoring or compliance reports available to the public,
subject to the confidentiality portion of section 114(c) of
the Act [see 70.4(b)(3)(viii)].
To allow opportunity for judicial review in State court
of final permit actions by the source, persons who
participated in the permit proceedings and who would
have standing under Article III of the U.S. Constitution,
and any other person who could obtain judicial review under
State law [see 70.4(b)(3)(x)].
To provide that State court challenge of final permit action
is exclusive means of challenging permit terms and
conditions in State court [see 70.4(b)(3)(xii)].
To provide that petitions for judicial review must be
filed within 90 days after final permit action or some
shorter time (except if such petitions are based solely
on grounds arising after the deadline for judicial review)
[see 70.4(b)(3)(xii)].
To allow opportunity for judicial review of failure of
agency to take timely final action on a permit, renewal or
modification [see 70.4(b)(3)(xi)].
ENFORCEMENT AUTHORITY
To obtain entry and inspect permitted sources to assure
compliance [see 70.6(c)(2)].
To require compliance plans [see 70.5(c)(8)].
To require compliance schedules [see 70.5(c)(8)(iii)].
To require compliance certifications [see 70.5(c)(9)].
To enforce the conditions of a permit after the end of the
term of the permit or after expiration (provided there has
been a timely and complete application for renewal)
[see 70.4(b)(10)].
To restrain or enjoin immediately violations which present
an imminent and substantial endangerment to public health or
welfare or to the environment [see 70.11(a)(1)].
To seek injunctive relief without first having to revoke the
source's permit [see 70.11(a)(2)].
To recover civil penalties in a maximum amount of
not less than $10,000 per day per violation
[see 70.11(a)(3)(i)].
To recover civil penalties without proof of mental state
(i.e., strict liability) [see 70.11(a)(3)(i)].
To recover criminal fines in a maximum amount of not less
than $10,000 per day per violation against any person who
knowingly violates any applicable requirement, any permit
condition or any fee or filing requirement and against any
person who knowingly makes any false material statement,
representation or certification in any form, or who
knowingly renders inaccurate any required monitoring device
or method [see 70.11(a)(3)(ii) and (iii)].
To recover civil penalties and criminal fines on
a per-day per-violation basis when the violation is
continuous or when more than one violation occurs on the
same day [see 70.11(a)(3)].
To provide that the burden of proof and degree of knowledge
or intent for establishing civil and criminal liability for
violations shall be no greater than required under the Act
[see 70.11(b)].
Please e-mail any comments or questions to the Clean Air Act Information
Network.
Return to the Clean Air
Act Information Network Home Page